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Exhibit 10.16
SKILLSOFT CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into as of the 31st day of March
1999, between SkillSoft Corporation, a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxxxx (the "Recipient").
RECITALS:
WHEREAS, the Company has adopted the 1998 Stock Incentive Plan
(the "Plan"), which Plan is hereby incorporated in this Agreement by reference
and made a part of it; and
WHEREAS, the Company regards Recipient as a valuable
contributor to the Company, and has determined that it would be in the interest
of the Company and its stockholders to sell the Stock (as defined below) to the
Recipient as a reward for past efforts and an incentive for continued service
with the Company and increased achievements in the future by Recipient;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties to this Agreement hereby agree as follows:
1. Restricted Stock Purchase. Contemporaneously with the execution of
this Agreement, the Company will issue to Recipient 50,000 shares of Common
Stock of the Company (the "Stock") for a consideration of $0.175 per share
("Purchase Price"). Payment of the aggregate Purchase Price of $8,750.00 for the
Stock shall be made to the Company as follows: (i) $4,375.00 shall be paid in
cash, and (ii) $4,375.00 shall be made by delivery of a promissory note, in the
form attached hereto as Exhibit A, each upon execution of this Agreement.
Recipient shall pledge the non-vested Stock as security for the promissory note
pursuant to a security agreement in the form attached hereto as Exhibit B. All
shares of Stock issued hereunder shall be deemed issued to Recipient as fully
paid and nonassessable shares, and Recipient shall have all rights of a
stockholder with respect thereto, including the right to vote, receive dividends
(including stock dividends), participate in stock splits or other
recapitalizations, and exchange such shares in a merger, consolidation or other
reorganization. The Company shall pay any applicable stock transfer taxes.
2. Repurchase Option.
(a) Transfer Restrictions. Except as provided in Section 3(f), no Stock
issued to the Recipient hereunder shall be sold, transferred by gift, pledged,
hypothecated, or otherwise transferred or disposed of by the Recipient in
contravention of Section 2 or Section 3 hereof other than by will or the laws of
descent and distribution (the "Permitted Transfers"). Except for Permitted
Transfers, no Stock issued to the Recipient hereunder shall be sold, transferred
by gift, pledged, hypothecated, or otherwise transferred or disposed of by the
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Recipient prior to the date when the Recipient shall become vested in such Stock
pursuant to Section 4 hereof, and such Stock shall constitute "Non-Vested Stock"
until such date. Any attempt to transfer Stock in violation of this Section 2 or
Section 3 shall be null and void and shall be disregarded by the Company.
(b) Repurchase Option. Non-Vested Stock shall be subject to a
repurchase option in favor of the Company (the "Repurchase Option"). The
Repurchase Option shall be subject to the following terms and conditions. In the
event of the voluntary or involuntary termination of employment of Recipient
with the Company for any reason, with or without cause (including death or
disability), the Company shall, upon the date of such termination, have an
irrevocable, exclusive option for a period of three months from such date to
repurchase any or all of the Non-Vested Stock from Recipient or any person
receiving the Non-Vested Stock by operation of law or other involuntary
transfer, at the original Purchase Price for the Non-Vested Stock.
(c) Exercise of Repurchase Option. The Repurchase Option shall be
exercised by written notice by the Company to Recipient or his or her executor
and, at the Company's option, (i) by delivery to the Recipient or his or her
executor, with such notice, of a check in the amount of the original Purchase
Price for the Non-Vested Stock being repurchased (the "Repurchase Amount"), or
(ii) in the event the Recipient is indebted to the Company for all or a portion
of the Repurchase Amount, by cancellation by the Company of an amount of such
purchase money indebtedness equal to the Repurchase Amount for the Stock being
repurchased, or (iii) by a combination of (i) and (ii) so that the combined
payment and cancellation of indebtedness equals such Repurchase Amount. Upon
delivery by the Company of such notice and payment of the Repurchase Amount in
any of the ways described above, the Company shall become the legal and
beneficial owner of the Non-Vested Stock being repurchased and all rights and
interest therein or related thereto, and the Company shall have the right to
transfer to its own name the number of shares of Stock being repurchased by the
Company, without further action by Recipient.
(d) Assignment of Repurchase Option. The Repurchase Option may be
assigned by the Company to any third party.
(e) Escrow of Stock. For purposes of facilitating the enforcement of
the provisions of this Section 2, Recipient agrees, immediately upon receipt of
the certificate(s) for the Stock, to deliver such certificate(s), together with
an Assignment Separate from Certificate in the form attached hereto as Exhibit
C, executed in blank by Recipient and Recipient's spouse (if required for
transfer) with respect to each such stock certificate, to the Secretary or
Assistant Secretary of the Company, or their designee, to hold in escrow for so
long as such Stock remains subject to any Repurchase Option of the Company
pursuant to this Section 2, with the authority to take all such actions and to
effectuate all such transfers and/or releases as may be necessary or appropriate
to accomplish the objectives of this Agreement in accordance with the terms
hereof. Stock may be held for an additional period if subject to a Security
Agreement as provided in this Agreement. Recipient hereby acknowledges that the
appointment of the Secretary or Assistant Secretary of the Company (or their
designee) as the escrow holder
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hereunder with the stated authorities is a material inducement to the Company to
make this Agreement and that such appointment is coupled with an interest and is
accordingly irrevocable. Recipient agrees that such escrow holder shall not be
liable to any party hereto (or to any other party) for any actions or omissions
unless such escrow holder is grossly negligent relative thereto. The escrow
holder may rely upon any letter, notice or other document executed by any
signature purported to be genuine and may resign at any time.
3. First Refusal Right.
(a) Grant of Right. The Company is hereby granted the right of first
refusal (the "First Refusal Right"), exercisable in connection with any proposed
sale or other transfer of the Stock acquired by Recipient hereunder. For
purposes of this Section 3, the term "transfer" shall include any assignment,
pledge, encumbrance or other disposition for value of the Stock intended to be
made by the Owner (defined below), but shall not include any of the Permitted
Transfers under Section 3(f). For purposes of this Section 3, the term "Owner"
shall include the Recipient or any subsequent holder of the Stock who derives
his or her chain of ownership through a transfer permitted by Section 3(f).
(b) Notice of Intended Disposition. In the event the Owner desires to
accept a bona fide third-party offer for any or all of the Stock (the shares
subject to such offer to be hereinafter called, solely for the purposes of this
Section 3, the "Target Shares"), Owner shall promptly deliver to the Secretary
of the Company written notice (the "Disposition Notice") of the offer and the
basic terms and conditions thereof, including the proposed purchase price.
(c) Exercise of Right. The Company (or its assignee) shall, for a
period of twenty (20) days following receipt of the Disposition Notice, have the
right to repurchase any or all of the Target Shares specified in the Disposition
Notice upon substantially the same terms and conditions specified therein. Such
right shall be exercisable by written notice (the "Exercise Notice") delivered
to Owner prior to the expiration of the twenty (20) day exercise period. If the
Exercise Notice pertains to all the Target Shares specified in the Disposition
Notice, then the Company (or its assignees) shall effect the repurchase of such
Target Shares, including payment of the purchase price, not more than five (5)
business days after delivery of the Exercise Notice; and at such time Owner
shall deliver to the Company the certificates representing the Target Shares to
be repurchased, each certificate to be properly endorsed for transfer. The
Target Shares so purchased shall thereupon be canceled and cease to be issued
and outstanding shares of the Company's common stock. However, should the
purchase price specified in the Disposition Notice be payable in property other
than cash or evidences of indebtedness, the Company (or its assignees) shall
have the right to pay the purchase price in the form of cash equal in amount to
the value of such property. If the Owner and the Company (or its assignees)
cannot agree on such cash value within ten (10) days after the Company's receipt
of the Disposition Notice, the valuation shall be made by an appraiser of
recognized standing selected by the Owner and the Company (or its assignees) or,
if they cannot agree on an appraiser within twenty (20) days after the Company's
receipt of the Disposition Notice, each shall select an appraiser of recognized
standing and the two appraisers shall designate a third appraiser of recognized
standing, whose appraisal shall be determinative of
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such value. The closing shall then be held on the later of (i) the fifth
business day following delivery of the Exercise Notice or (ii) the 15th day
after such cash valuation shall have been made.
(d) Non-Exercise of Right. In the event the Exercise Notice is not
given to Owner within twenty (20) days following the date of the Company's
receipt of the Disposition Notice, Owner shall have a period of ninety (90) days
thereafter in which to sell or otherwise dispose of the Target Shares upon terms
and conditions (including the purchase price) no more favorable to the third
party purchaser than those specified in the Disposition Notice. The third-party
purchaser shall acquire the Target Shares subject to all the terms and
provisions of this Agreement. All transferees of the Target Shares shall be
required as a condition of such transfer to agree in writing (in a form
satisfactory to the Company) that such transferee shall receive and hold the
Target Shares subject to the provisions of this Agreement. In the event Owner
does not sell or otherwise dispose of the Target Shares within the specified
ninety (90) day period, the Company's First Refusal Right shall continue to be
applicable to any subsequent disposition of the Target Shares by Owner until
such right lapses in accordance with Section 5.
(e) Partial Exercise of Right. In the event the Company (or its
assignees) makes a timely exercise of the First Refusal Right with respect to a
portion, but not all, of the Target Shares specified in the Disposition Notice,
Owner shall have the option, exercisable by written notice to the Company
delivered within ninety (90) days after the date of the Disposition Notice, to
effect the sale of the Target Shares pursuant to one of the following
alternatives:
(i) sale or other distribution of all the Target Shares to a
third-party purchaser in compliance with the requirements of Section
3(d), as if the Company did not exercise the First Refusal Right
hereunder; or
(ii) sale to the Company (or its assignees) of the portion of
the Target Shares which the Company (or its assignees) has elected to
purchase, such sale to be effected in substantial conformity with the
provisions of Section 3(c).
Failure of Owner to deliver timely notification to the Company under this
Section 3(e) shall be deemed to be an election by Owner to sell the Target
Shares pursuant to alternative (ii) above.
(f) Exempt Transfers. The Company's First Refusal Right under this
Section 3 shall not apply to transfers of the Stock by will or the laws of
descent and distribution; provided, however, that all of the terms of this
Agreement shall remain in effect as to such transferred Stock. In addition,
Recipient may transfer all or a portion of the Stock to (i) a revocable trust
for the sole benefit of Recipient, his or her spouse, or his or her lineal
descendants, or (ii) to his or her spouse, siblings, lineal descendants thereof,
parents, or his or her lineal descendants subject to a nonrevocable voting trust
of a duration of 10 years without the written permission of the Company,
provided said Recipient is trustee and prior written notice (together with a
copy of the trust agreement) is given the Company within thirty (30) days
thereafter. The trustee shall hold such Stock subject to all the provisions
hereof, and shall make
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no further transfers other than as provided herein. Upon the death, total
disability, or termination of employment of the transferor Recipient, the
successor trustee or any cotrustee (and any subsequent transferee) shall be
required to sell, transfer or present said Stock for purchase as provided
herein, for the price and on the terms hereafter set forth as if such successor
trustee and subsequent transferee were the transferor Recipient. Transferee
shall make no further transfers other than as provided herein, and any attempted
transfer in violation of this Section 3 shall be null and void and shall be
disregarded by the Company. All references herein to Stock shall be deemed to
include Stock owned by any such successor trustee or subsequent transferee,
except that payment for such trustee and transferee Stock shall be made to the
trustee and transferee instead of to the original Recipient or his or her
estate.
4. Vesting. For purposes of this Agreement, the term "vest" shall mean
with respect to any share of the Stock that such share is no longer Non-Vested
Stock subject to repurchase at the original Purchase Price set forth in Section
2. If Recipient would become vested in any fraction of a share of Stock on any
date, such fractional share shall not vest and shall remain Non-Vested Stock
until the Recipient becomes vested in the entire share. Commencing on February
1, 1999 and continuing on the monthly anniversary of such date, 1/36 of the
Stock subject to this Agreement shall vest.
5. Lapse. The Company's First Refusal Right under Section 3 above shall
lapse and cease to have effect upon the closing of the first underwritten public
offering of Common Stock of the Company that is pursuant to a registration
statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
covering the offer and sale of any Common Stock to the public for the Company's
account in a firmly underwritten offering for at least $20,000,000.
6. Corporate Transactions.
(a) Definition. For purposes of this Section 6, a "Corporate
Transaction" shall include any of the following stockholder-approved
transactions to which the Company is a party:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for (1) a transaction the principal purpose of
which is to change the state of the Company's incorporation, or (2) a
transaction in which the Company's stockholders immediately prior to
such merger or consolidation hold (by virtue of securities received in
exchange for their shares in the Company) securities of the surviving
entity representing more than fifty percent (50%) of the total voting
power of such surviving entity immediately after such transaction;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company unless the Company's
stockholders immediately prior to such sale, transfer or other
disposition hold (by virtue of securities received in exchange for
their shares in the Company) securities of the purchaser
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or other transferee representing more than fifty percent (50%) of the
total voting power of such entity immediately after such transaction;
or
(iii) any merger in which the Company is the surviving entity
but in which the Company's stockholders immediately prior to such
merger do not hold (by virtue of their shares in the Company)
securities of the surviving entity held immediately prior to such
transaction representing more than fifty percent (50%) of the total
voting power of the surviving entity immediately after such
transaction.
(b) Effect. In the event of any Corporate Transaction, (i) the
Company's Repurchase Option under Section 2 shall lapse and (ii) the Company's
First Refusal Right under Section 3 shall lapse.
7. Additional Securities. The term "Stock" also refers to all
securities received in replacement of the Stock, as a stock dividend or as a
result of any stock split, recapitalization, merger, reorganization, exchange or
the like, and all new or additional securities or other properties to which
Recipient is entitled by reason of Recipient's ownership of the Stock
(hereinafter called "Additional Securities"). Recipient shall be entitled to
direct the Company to exercise any warrant or option received as Additional
Securities upon supplying the funds necessary to do so, in which event the
securities so purchased shall constitute Additional Securities, but the
Recipient may not direct Company to sell any such warrant or option. If
Additional Securities consist of a convertible security, Recipient may exercise
any conversion right, and any securities so acquired shall be deemed Additional
Securities. All Stock shall be subject to the restrictions contained in this
Agreement.
8. Investment Representations.
(a) Investment Representations. This Agreement is made in reliance upon
the Recipient's representation to the Company, which by its acceptance hereof
the Recipient hereby confirms, that the shares of Stock to be received by the
Recipient will be acquired for investment for his or her own account and not
with a view to the sale or distribution of any part thereof within the meaning
of the Securities Act.
(b) Availability of Exemptions. The Recipient understands that the
Stock is not registered under the Securities Act on the basis that the sale
provided for in this Agreement and the issuance of securities hereunder is
exempt from registration under the Securities Act pursuant to Section 4(2)
thereof, and that the Company's reliance on such exemption is predicated on the
Recipient's representations set forth herein.
(c) Restrictions on Transfer. The Recipient understands that the Stock
may not be sold, transferred, or otherwise disposed of without registration
under the Securities Act or an exemption therefrom, and that in the absence of
an effective registration statement covering the Stock or an available exemption
from registration under the Securities Act, the Stock must be held indefinitely.
In particular, the Recipient is aware that the Stock may not be sold pursuant to
Rule 144 or Rule 701 promulgated under the Securities Act unless all of the
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conditions of the applicable Rules are met. Among the conditions for use of Rule
144 is the availability of current information to the public about the Company.
Such information is not now available, and the Company has no present plans to
make such information available. The Recipient represents that, in the absence
of an effective registration statement covering the Stock, it will sell,
transfer, or otherwise dispose of the Stock only in a manner consistent with its
representations set forth herein and then only in accordance with the provisions
of Section 8(d) hereof.
(d) Procedure for Transfer. The Recipient agrees that in no event will
it make a transfer or disposition of any of the Stock (other than pursuant to an
effective registration statement under the Securities Act), unless and until (i)
the Recipient shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the disposition, (ii) such transfer is made in accordance with the
provisions of Section 2 and Section 3 above and (iii) if requested by the
Company, at the expense of the Recipient or transferee, the Recipient shall have
furnished to the Company either (A) an opinion of counsel, reasonably
satisfactory to the Company, to the effect that such transfer may be made
without registration under the Securities Act or (B) a "no action" letter from
the Securities and Exchange Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Securities and Exchange Commission that action be taken with respect
thereto. The Company will not require such a legal opinion or "no action" letter
in any transaction in compliance with Rule 144.
9. Legends; Stop Transfer.
(a) Required Legends. All certificates for shares of the Stock shall
bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. THESE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY
THE TERMS OF, AND ARE SUBJECT TO A RIGHT OF FIRST REFUSAL
OPTION AND A RIGHT OF REPURCHASE IN FAVOR OF THE COMPANY, AS
PROVIDED IN A RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE
COMPANY AND THE HOLDER HEREOF, OR ITS SUCCESSOR, A COPY OF
WHICH IS AVAILABLE FROM THE COMPANY."
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(b) Additional Legends. The certificates for shares of the Stock shall
also bear any legend required by any applicable state securities law.
10. Lock-Up Agreement.
(a) Agreement. Recipient, if requested by the Company and the lead
underwriter of any public offering of the Common Stock or other securities of
the Company (the "Lead Underwriter"), hereby irrevocably agrees not to sell,
contract to sell, grant any option to purchase, transfer the economic risk of
ownership in, make any short sale of, pledge or otherwise transfer or dispose of
any interest in any Common Stock or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or acquire
Common Stock (except Common Stock included in such public offering or acquired
on the public market after such offering) during the 180-day period following
the effective date of a registration statement of the Company filed under the
Securities Act, or such shorter period of time as the Lead Underwriter shall
specify. Recipient further agrees to sign such documents as may be requested by
the Lead Underwriter to effect the foregoing and agrees that the Company may
impose stop-transfer instructions with respect to such Common Stock subject
until the end of such period. The Company and Recipient acknowledge that each
Lead Underwriter of a public offering of the Company's stock, during the period
of such offering and for the 180-day period thereafter, is an intended
beneficiary of this Section 10.
(b) Permitted Transfers. Notwithstanding the foregoing, Section 10(a)
shall not prohibit Recipient from transferring any shares of Common Stock or
securities convertible into or exchangeable or exercisable for the Company's
Common Stock to the extent such transfer is not otherwise prohibited by this
Agreement, either during Recipient's lifetime or on death by will or intestacy
to Recipient's immediate family or to a trust the beneficiaries of which are
exclusively Recipient and/or a member or members of Recipient's immediate
family; provided, however, that prior to any such transfer, each transferee
shall execute an agreement pursuant to which each transferee shall agree to
receive and hold such securities subject to the provisions of Section 10 hereof.
For the purposes of this paragraph, the term "immediate family" shall mean
spouse, lineal descendant, father, mother, brother or sister of the transferor.
(c) No Amendment Without Consent of Underwriter. During the period from
identification as a Lead Underwriter in connection with any public offering of
the Company's Common Stock until the earlier of (i) the expiration of the
lock-up period specified in Section 10(a) in connection with such offering or
(ii) the abandonment of such offering by the Company and the Lead Underwriter,
the provisions of the Section 10 may not be amended or waived except with the
consent of the Lead Underwriter.
11. NO EMPLOYMENT RIGHTS. THIS AGREEMENT SHALL NOT CONFER UPON
RECIPIENT ANY RIGHT WITH RESPECT TO CONTINUATION OF HIS OR HER EMPLOYMENT WITH
THE COMPANY OR ITS AFFILIATES, NOR SHALL IT INTERFERE IN ANY WAY WITH THE RIGHT
OF RECIPIENT OR THE COMPANY, OR ANY OF ITS AFFILIATES, TO TERMINATE RECIPIENT'S
EMPLOYMENT WITH THE
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COMPANY AT ANY TIME FOR ANY REASON WITH OR WITHOUT CAUSE OR CHANGE THE TERMS OF
EMPLOYMENT OF RECIPIENT.
12. Section 83(b) Election. Recipient hereby represents that he or she
understands (a) the contents and requirements of a timely election made pursuant
to Section 83(b) of the Internal Revenue Code or similar provision of state law
(collectively, an "83(b) Election"), (b) the application of Section 83(b) to the
purchase of Stock by Recipient pursuant to this Agreement, (c) the nature of the
election to be made by Recipient under Section 83(b) and (d) the effect and
requirements of the 83(b) Election under relevant state and local tax laws.
Recipient further represents that he or she intends to file an election pursuant
to Section 83(b), the form of which Election is attached hereto as Exhibit D,
with the Internal Revenue Service within thirty (30) days following purchase of
the Stock hereunder, and a copy of such election with his or her federal tax
return for the calendar year in which the date of this Agreement falls.
Recipient covenants to inform the Company of any change in Recipient's state of
residency. Recipient shall provide the Company with a copy of any timely 83(b)
Election. If Recipient makes a timely 83(b) Election, Recipient shall
immediately pay Company the amount necessary to satisfy any applicable federal,
state, and local income and employment tax withholding requirements. If
Recipient does not make a timely 83(b) Election, Recipient shall, either at the
time that the restrictions lapse under this Agreement or at the time withholding
is otherwise required by any applicable law, pay the Company the amount
necessary to satisfy any applicable federal, state, and local income and
employment tax withholding requirements.
13. Withholding. Recipient agrees to withholding of shares from
exercise for satisfaction of any applicable federal, state or local income tax
or employment tax withholding requirements.
14. Distributions. The Company shall disburse to Recipient all
dividends, interest and other distributions paid or made in cash or property
(other than Additional Securities) with respect to Stock and Additional
Securities, less any applicable federal or state withholding taxes.
15. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
16. Notice. Any notice or other paper required to be given or sent
pursuant to the terms of this Agreement shall be sufficiently given or served
hereunder to any party when transmitted by express or certified mail, postage
prepaid, addressed to the party to be served as follows:
Company: SkillSoft Corporation
00 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Attn: Secretary
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Recipient: At Recipient's address as it appears under Recipient's
signature to this Agreement, or to such other address as
Recipient may specify in writing to the Company
Any party may designate another address for receipt of notices so long as notice
is given in accordance with this Section.
17. Spousal Consent. Recipient shall cause his or her spouse to execute
the Consent of Spouse attached hereto as Exhibit E concurrently with the
execution of this Agreement or, if later, at the time Recipient becomes married.
18. Delaware Law. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Restricted Stock Purchase Agreement as of the date first above written.
SKILLSOFT CORPORATION
a Delaware corporation
By /s/ Xxxxx Xxxxx
Its President and CEO
Recipient:
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Address:
0 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
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EXHIBIT A
SECURED PROMISSORY NOTE
$4,375.00 March 31, 1999
FOR VALUE RECEIVED, the undersigned Xxxx X. Xxxxxxxx, an
individual residing at 0 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Maker"),
hereby promises to pay to SkillSoft Corporation, a Delaware corporation
("Payee"), on the earlier of (i) March 31, 2004 or (ii) the date Maker ceases to
be an employee of Payee, for any reason, the principal sum of four thousand
three hundred seventy-five dollars ($4,375.00), in lawful money of the United
States of America and in immediately available funds, plus simple interest from
the date hereof at the rate of four and 83/100 percent (4.83%) per annum,
payable in full on the date such principal amount is due, provided however, that
the last said installment shall be in an amount necessary to repay in full the
unpaid principal and interest hereof.
Interest shall be computed on the basis of a year of 365 days
for the actual number of days elapsed. Should interest not be paid when due
hereunder, it shall be added to the principal and thereafter bear like interest
as the principal, but such unpaid interest so compounded shall not exceed an
amount equal to simple interest on the unpaid principal at the maximum rate
permitted by law.
This is the Promissory Note referred to in the Security
Agreement of even date herewith between Maker and Payee, and Payee is entitled
to all the benefits provided therein.
(i) Prepayments. Maker reserves the right to prepay the
outstanding principal amount of this Note in full or in part at any time during
the term of this Note without notice and without premium or penalty.
(ii) Events of Default and Remedies. Any one of the following
occurrences shall constitute an "Event of Default" under this Note:
(a) Maker fails to make payment of full principal
amount of this Note as and when the same becomes due and payable in accordance
with the terms hereof.
(b) Maker becomes insolvent or bankrupt, commits any
act of bankruptcy, generally fails to pay its debts as they become due, becomes
the subject of any proceedings or action of any regulatory agency or any court
relating to insolvency, or makes an assignment for the benefit of its creditors,
or enters into any agreement for the composition, extension, or readjustment of
all or substantially all of his or her obligations.
(c) Maker ceases to be an employee of Payee for any
reason.
Upon the occurrence of any Event of Default
hereunder, the entire unpaid principal balance of this Note (including accrued
interest) shall, at the option of the Payee and without notice or demand of any
kind to Maker or any other person,
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immediately become due and payable, and Payee shall have and may exercise any
and all rights and remedies available to it at law or in equity.
(iii) Attorneys' Fees and Costs. Maker promises to pay on
demand all reasonable out-of-pocket costs of and expenses of Payee in connection
with the collection of amounts due hereunder, including, without limitation,
attorneys' fees incurred in connection therewith, whether or not any lawsuit is
ever filed with respect thereto.
(iv) Miscellaneous.
(a) Waiver. Maker waives diligence, presentment,
protest and demand and also notice of protest, demand, dishonor and nonpayment
of this Note. No extension of time for the payment of this Note shall affect the
original liability under this Note of Maker. The pleading of any statute of
limitations as a defense to any demand against Maker is expressly waived by
Maker to the full extent permitted by law.
(b) Setoff. The obligation to pay Payee shall be
absolute and unconditional and the rights of Payee shall not be subject to any
defense, setoff, counterclaim or recoupment or by reason of any indebtedness or
liability at any time owing by Payee to Maker.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Note as of the date first above written.
MAKER
/s/ Xxxx X. Xxxxxxxx
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EXHIBIT B
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made and entered into as of this
31st day of March, 1999 by and between SkillSoft Corporation, a Delaware
corporation ("Secured Party"), and Xxxx X. Xxxxxxxx, an individual residing at 0
Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Debtor").
In consideration of the mutual covenants contained herein and
for other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Definitions. The following terms have the following
meanings:
(a) The term "Collateral" shall mean (i) the tangible assets
owned by Debtor as of the date hereof and described in Exhibit A attached hereto
and (ii) all Proceeds of the foregoing Collateral. For purposes of this Security
Agreement, the term "Proceeds" includes whatever is receivable or received when
Collateral or proceeds thereof is sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes,
without limitation, all rights to payment, including return premiums, with
respect to any insurance relating thereto.
(b) The term "Obligations" shall mean all of the unpaid
principal sum of that certain Secured Promissory Note in the original principal
amount of $4,375.00 of even date herewith (the "Note") evidencing the
indebtedness of Debtor to Secured Party.
(c) The term "UCC" shall mean the Uniform Commercial Code as
the same may, from time to time, be in effect in the State of New Hampshire.
(d) Capitalized terms used herein shall have the meaning set
forth in the UCC unless otherwise set forth herein.
(e) The term "Event of Default" shall have the meaning set
forth in the Note.
2. Grant of Security Interest. As collateral security for
prompt and complete payment and performance under the Obligations, Debtor hereby
assigns, conveys, grants, pledges and transfers to and creates in favor of
Secured Party a security interest in the Collateral, including all Proceeds of
the foregoing and all accessions to, substitutions and replacements for the
foregoing. Debtor shall, upon execution of this Security Agreement, and of the
Note as Payee (as such term is defined in the Note), deliver all certificates
representing the Collateral together with a stock power executed in blank by
Debtor and Debtor's spouse with respect to such stock certificates to the
Secretary of Secured Party to be held in escrow until full satisfaction of
Debtor's obligations hereunder and under the Note with the authority to take all
such actions and to effectuate all such transfers and/or releases as may be
necessary or appropriate to accomplish the objectives of this Security Agreement
and the Note. In the event that the Proceeds from the disposition
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of the Collateral are insufficient to fully satisfy the amounts due and owing
under the Note, Debtor shall, subject to the limitations set forth in the UCC,
be liable for any deficiency.
3. Representations, Warranties and Covenants. Debtor
represents, warrants and covenants that:
(a) Title. Apart from the security interest in the Collateral
granted to Secured Party hereunder, Debtor has good and valid title to the
Collateral, free and clear of any and all liens, charges, claims, security
interests or encumbrances of any kind whatsoever.
(b) Transfer of Collateral. Debtor shall not sell, assign,
transfer, encumber or otherwise dispose of any of the Collateral or any interest
therein without the prior written consent of Secured Party. If any such
encumbrance is imposed, Debtor shall give Secured Party immediate written
notice.
(c) Perfection. Debtor shall, upon demand, do all such acts as
Secured Party may reasonably request to establish and maintain a perfected
security interest in the Collateral, including, without limitation, executing a
financing statement in the form prescribed by the New Hampshire Secretary of
State.
4. Remedies. Upon the occurrence of any Event of Default
hereunder, the entire unpaid principal balance of the Note shall, at the option
of the Payee and without notice or demand of any kind to Debtor or any other
person, immediately become due and payable, and Secured Party may proceed to
exercise any and all of the rights and remedies of a secured party under the UCC
and any other remedies available at law or in equity, with respect to the
Collateral.
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be executed as of the date first above written.
SECURED PARTY
SKILLSOFT CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxx
Its: CFO
DEBTOR
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
2
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EXHIBIT A
DESCRIPTION OF COLLATERAL
25,000 shares of Common Stock of SkillSoft Corporation
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EXHIBIT C
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ____________ hereby sells, assigns and
transfers unto SkillSoft Corporation, a Delaware corporation (the "Company"),
_______ (_________________________) shares of the Common Stock of the Company,
standing in his or her name on the books of SkillSoft Corporation, represented
by Certificate No. __ herewith, and does hereby irrevocably constitute and
appoint ________________ attorney to transfer the said stock in the books of
SkillSoft Corporation with full power of substitution.
DATED: ________________
_________________________________________
(Signature)
_________________________________________
(Printed Name)
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EXHIBIT D
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to the
Internal Revenue Code, to include in gross income for 1999 the amount of any
compensation taxable in connection with the taxpayer's receipt of the property
described below;
1. The name, address, taxpayer identification number and
taxable year of the undersigned are:
TAXPAYER'S NAME:
SPOUSE'S NAME:
TAXPAYER'S SOCIAL SECURITY NO.:
SPOUSE'S SOCIAL SECURITY NO.:
TAXABLE YEAR: Calendar Year 1999
ADDRESS:
2. The property which is the subject of this election is:
________ shares of Common Stock of SkillSoft Corporation, a Delaware
corporation.
3. The property was transferred to the undersigned on
_________, 1999.
4. The property is subject to the following restriction:
_____________________________.
5. The fair market value of the property at the time of
transfer (determined without regard to any restriction other than a restriction
which by its terms will never lapse) is: $0.175 per share x __________ shares =
$_________.
6. The undersigned paid $0.175 per share x __________ shares
for the property transferred or a total of $__________.
The undersigned has submitted a copy of this statement to the
person for whom the services were performed in connection with the undersigned's
receipt of the above-described property. The undersigned taxpayer is the person
performing the services in connection with the transfer of said property.
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The undersigned will file this election with the Internal
Revenue Service office in which he or she files his or her annual income tax
return not later than 30 days after the date of transfer of the property. A copy
of the election also will be furnished to the person for whom the services were
performed. Additionally, the undersigned will include a copy of the election
with his or her income tax return for the taxable year in which property is
transferred. The undersigned understands that this election will also be
effective as an election under New Hampshire law.
Dated: __________________________________________ __________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: __________________________________________ __________________________
Spouse of Taxpayer
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EXHIBIT E
CONSENT OF SPOUSE
I, Xxxxxxxx Xxxxxxxx, spouse of Xxxx X. Xxxxxxxx, have read
and approved the foregoing Agreement. In consideration of the right of my spouse
to purchase shares of SkillSoft Corporation, as set forth in the Agreement, I
hereby appoint my spouse as my attorney-in-fact in respect to the exercise of
any rights of the Agreement insofar as I may have any rights under such
community property laws of the State of New Hampshire or similar laws relating
to marital property in effect in the state of our residence as of the date of
the signing of the foregoing Agreement.
Dated: /s/ Xxxxxxxx Xxxxxxxx
[Signature]
Xxxxxxxx Xxxxxxxx
[Printed Name]
