Exhibit 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement among Jerald A. Nine (the "Executive") and SmartForce PLC, a public company limited by shares formed under the laws of the Republic of Ireland ("SmartForce PLC") and its wholly-owned subsidiary, SmartForce, a Delaware corporation ("SmartForce"), is entered into as of June 10, 2002. The effectiveness of this Agreement is subject to the occurrence of the Closing Date as that term is defined in the Agreement and Plan of Merger by and among SmartForce PLC, SkillSoft Corporation and Slate Acquisition Corp. (the "Effective Date"). If such Agreement and Plan of Merger is terminated prior to the Closing Date, this Agreement shall be null and void. For purposes of this Agreement, the term "Company" shall be used to refer to both SmartForce PLC and SmartForce.
WHEREAS, the Company desires to employ the Executive and the Executive desires to continue employment with the Company on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing recital and the respective covenants and agreements of the parties contained in this document, the Company and the Executive agree as follows:
1. Employment and Duties. The Executive shall be employed as Executive Vice President, Content Solutions and General Manager, Books Division of the Company effective as of the Effective Date reporting to the Chief Executive Officer of SmartForce PLC (the "CEO"), and assuming and discharging such responsibilities as are mutually agreed upon by the Executive and the CEO commensurate with such office and position. The Executive shall perform faithfully the executive duties assigned to him to the best of his ability.
2. Base Salary. In consideration of the Executive's services, the Executive shall be paid a minimum base salary at the rate of $200,000 per year during the period of employment (the "Base Salary"), to be paid in installments in accordance with the Company's standard payroll practices. This Base Salary shall be reviewed for increases at least annually by the Board on the same basis as the Board shall review the compensation of other executive officers of the Company.
3. Bonus. In addition to the Base Salary, the Executive shall be eligible to receive an annual performance bonus in the amount determined by the Board (the "Targeted Bonus") based on performance metrics established by the Board. This Targeted Bonus shall be reviewed for increases at least annually by the Board on the same basis as the Board shall review the compensation of other executive officers of the Company.
4. At-Will Employment. The Company and the Executive acknowledge that the Executive's employment is and shall continue to be at-will, as defined under applicable law. If the Executive's employment terminates for any reason, the Executive shall not be entitled to any payments, benefits, damages, awards or compensation other than as provided by this Agreement, or
as may otherwise be available in accordance with the Company's established employee plans and policies or other written agreements with the Executive at the time of termination.
5. Benefits; Expenses. The Executive, together with his spouse and dependent children, shall be permitted, to the extent eligible, to participate at the Company's expense in any group medical, dental, life insurance and disability insurance plans, or similar benefit plans of the Company that are available to other executive officers in each case pursuant to the terms and conditions of each such plan or program. The Executive shall also be entitled to four (4) weeks' annual vacation. Without limiting the generality of the foregoing, the Company shall reimburse the Executive for all reasonable business and travel expenses actually incurred or paid by the Executive in the performance of services on behalf of the Company, in accordance with the Company's expense reimbursement policy as in effect from time to time.
6. Voluntary Termination and Termination for Cause. In the event that the Executive terminates his employment with the Company voluntarily (other than for Good Reason, as defined below) or the Company terminates the Executive's employment for Cause, Sections 6(a), 6(b) and 6(c) below shall apply. For purposes of this Agreement, termination for "Cause" shall mean (i) any act of personal dishonesty taken by the Executive in connection with his responsibilities as an employee which is intended to cause a material personal financial benefit for the Executive and is intended to cause a material financial detriment to the Company, (ii) the Executive's conviction of or plea of nolo contendere to a felony, (iii) a willful act by the Executive which constitutes misconduct and is injurious to the Company, and (iv) continued willful violations by the Executive of the Executive's obligations to the Company under this Agreement.
(a) Covenant Not to Solicit. Beginning with the effective date of the Executive's voluntary termination (other than for Good Reason) or termination for Cause and until one (1) year thereafter (the "Non-Compete Period"), the Executive agrees that he will not:
(i) solicit, encourage, or take any other action which is intended to induce any other employee of the Company to terminate his employment with the Company, or
(ii) interfere in any manner with the contractual or employment relationship between the Company and any such employee of the Company.
The foregoing shall not prohibit the Executive or any entity with which the Executive may be affiliated from hiring a former employee of the Company, provided that such hiring results from such employee's affirmative response to a general recruitment effort carried out through a public solicitation or a general solicitation.
(b) Covenant Not to Compete. During the Non-Compete Period, the Executive agrees that he will not, directly or indirectly, own, manage, operate, join, control, advise or participate in, as a shareholder (other than as a shareholder with less than one percent (1%) of the outstanding stock of a company), officer, manager, executive, partner, consultant or technical or business advisor (or any foreign equivalents of the foregoing) any company that derives more than ten percent (10%) of its revenues from a Restricted Business, or any company or entity controlling, controlled by or under common control with any company that derives more than ten percent (10%)
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of its revenues from a Restricted Business (any such company, a "Restricted Company"). For the purposes of this Agreement, the term "Restricted Business" shall mean the business of developing or selling computer-based training for information technology professionals, on-line business degrees, or any other interactive education business in which the Company is then involved.
The foregoing will not in any way affect the Executive's right to take any of the foregoing positions if he is involved only in parts of a company that do not derive any revenues from the Restricted Business.
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