Exhibit 10.1
Severance
Agreement
This Severance Agreement (the
“Agreement”) is made and entered into as of
December 16, 2008, by and between Whitney Information
Network, Inc., a Colorado corporation (the
“Company”) and Anne Donoho (the
“Employee”).
Recitals
WHEREAS, the Employee is presently
the Chief Financial Officer of the Company; and
WHEREAS, the Company has previously
committed verbally to the Employee that she will be provided with
certain severance benefits in the event she is terminated from her
employment with the Company other than for cause or in connection
with a change in control, and the parties wish to set forth the
terms and conditions for such severance as set forth in this
Agreement;
NOW, THEREFORE in consideration of
the mutual covenants and promises of the parties, the Company and
Employee covenant and agree as follows:
1.
Definitions
For purposes of this Agreement, the
following terms have the following meanings:
(a) “Termination for Cause” means
termination by Company of Employee’s employment (i) by
reason of Employee’s willful dishonesty towards, fraud upon,
or deliberate injury or attempted injury to the Company, or
(ii) by reason of Employee’s gross negligence or
intentional misconduct with respect to the performance of
Employee’s duties; provided, however, that no such
termination will be deemed to be a Termination for Cause unless the
Company has provided Employee with written notice of what it
reasonably believes are the grounds for any Termination for Cause
and Employee fails to take appropriate remedial actions during the
30 day period following receipt of such written notice.
(b) “Termination Other Than For Cause”
means termination by the Company of Employee’s employment by
the Company for reasons other than those which constitute
Termination for Cause.
(c) “Voluntary Termination” means
termination by the Employee of the Employee’s employment with
the Company.
(d) “Change in Control” shall mean the
occurrence of one of the following events after the date of this
Agreement:
1
(1)
Any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, (an “ Acquiring
Person ”) shall acquire voting securities of the Company
and immediately thereafter is a beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934) of 50% or more of either (i) the then
outstanding shares of common stock of the Company or (ii) the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the “ Outstanding Company Voting Securities ”);
provided, however, that an Acquiring Person shall not include the
Company, any employee benefit plan of the Company, or any person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan; or
(2)
The shareholders of the Company
approve a merger or consolidation of the Company with any other
corporation, and the merger or consolidation has been consummated,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity
or any parent corporation (within the meaning of
Section 424(e) of the Code) of such surviving entity) at
least a majority of the Outstanding Company Voting Securities, such
surviving entity or the parent corporation of such surviving entity
outstanding immediately after such merger or consolidation;
or
(3)
The shareholders of the Company
approve a plan of reorganization (other than a reorganization under
the United States Bankruptcy Code) or complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets, and the
Company has taken the first substantive step pursuant to the plan
of reorganization or complete liquidation or the sale or
disposition has been consummated.
2.
Severance
Compensation
2.1
Termination Other Than for Cause
or In Connection With a Change in Control
In the event Employee’s
employment is terminated by the Company in a Termination Other Than
for Cause or in connection with a Change in Control, subject to
compliance with the provisions of this Agreement, Employee will be
paid as severance pay Employee’s base salary for the period
commencing on the date that Employee’s employment is
terminated and ending on the date which is twelve (12) months
thereafter. Payments will be made on the same schedule that
Employee’s base salary was being paid as of the termination
date. In addition, if Employee is receiving severance pay pursuant
to this Agreement, Employee shall remain eligible to participate in
all employee benefit plans to the extent maintained by the Company
for former employees of the Company,
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