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:


 


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(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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including any life, disability, health, accident and other
insurance programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determinations of any
committee administering such plan or program. The provision of health and other
applicable medical benefits may be fulfilled, at the Company’s option, through
Employee’s election of continuation coverage pursuant to COBRA (the
Consolidated Omnibus Budget Reconciliation Act) and the Company’s payment of
her COBRA premiums for the period during which Employee receives severance pay.


 


2.2          Other Termination


 


In the event of a Voluntary
Termination or Termination for Cause, Employee will not be entitled to any
severance pay or other benefits as set forth in this Agreement.


 


2.3          Compliance with Internal
Revenue Code Section 409A


 


(a)          It is the intention of both the Company and
Employee that the benefits and rights to which Employee could be entitled
pursuant to this Agreement comply with Section 409A of the Internal
Revenue Code and the Treasury Regulations and other guidance promulgated or
issued thereunder (“Section 409A”), to the extent that the
requirements of Section 409A are applicable thereto, and the provisions of
this Agreement shall be construed in a manner consistent with that intention.
If Employee or the Company believes, at any time, that any such benefit or
right that is subject to Section 409A does not so comply, it shall
promptly advise the other and shall negotiate reasonably and in good faith to
amend the terms of such benefits and rights such that they comply with Section 409A
(with the most limited possible economic effect on Employee and on the
Company).


 


(b)          If and to the extent required to comply with Section 409A,
no payment or benefit required to be paid under this Agreement on account of
termination of Employee’s employment shall be made unless and until Employee
incurs a “separation from service” within the meaning of Section 409A.


 


(c)          If Employee is a “specified employee,” then no
payment or benefit that is payable on account of Executive’s “separation from
service”, as that term is defined for purposes of Section 409A, shall be
made before the date that is six months after Executive’s “separation from
service” if and to the extent that such payment or benefit constitutes deferred
compensation (or may be nonqualified deferred compensation) under Section 409A
and such deferral is required to comply with the requirements of Section 409A.
Any payment or benefit delayed by reason of the prior sentence shall be paid
out or provided in a single lump sum at the end of such required delay period
in order to catch up to the original payment schedule. For purposes of this Section 2.3,
Employee shall be considered to be a “specified employee” if, at the time of
her “separation from service,” Employee is a “key employee”, within the meaning
of Section 416(i) of the Internal Revenue Code, of the Company (or
any person or entity with whom the


 


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Company would be considered a single employer under Section 414(b) or
Section 414(c) of the Code).


 


(d)          Neither the Company nor Employee, individually or
in combination, may accelerate any payment or benefit that is subject to Section 409A,
except in compliance with Section 409A and the provisions of this
Agreement, and no amount that is subject to Section 409A shall be paid
prior to the earliest date on which it may be paid without violating Section 409A.


 


(e)          For purposes of applying the provisions of Section 409A
to this Agreement, each separately identified amount to which Employee is
entitled under this Agreement shall be treated as a separate payment. In
addition, to the extent permissible under Section 409A, any series of
installment payments under this Agreement shall be treated as a right to a series
of separate payments.


 


2.4          Conditions


 


Employee’s
receipt of severance pay and any of the other benefits set forth in this
Agreement shall be subject to (a) the receipt and continued effectiveness
of an instrument of release in the standard form used by the Company, and (b) Employee’s
compliance with that certain Confidentiality, Non-Compete and Non-Solicitation
Agreement dated December 4, 2006 executed by Employee and the Company. In
addition, as a condition to receiving any benefits provided under this
Agreement, Employee shall execute such documents and provide such assistance,
cooperation, consultation, and information as the Company may reasonably
request from time to time with respect to matters affecting or related to the
Employee and in which Employee was involved or has knowledge, including, but
not limited to, governmental investigations, contracts, litigation, and
financial matters.


 


2.5          Term


 


Employee’s
right to and receipt of severance pay and other benefits, on the terms and
subject to the conditions set forth in this Agreement, and all of the other
provisions of this Agreement, shall automatically expire on December 4,
2010.


 


3.             Miscellaneous


 


3.1          Entire
Agreement; Modification


 


This
Agreement represents the entire understanding among the parties with respect to
the subject matter of this Agreement, and this Agreement supersedes any and all
prior understandings, agreements, plans, and negotiations, whether written or
oral, with respect to the subject matter hereof. All modifications to this Agreement
must be in writing and signed by the party against whom enforcement of such
modification is sought.


 


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3.2          Notice


 


All notices and other
communications under this Agreement must be in writing and must be given by
personal delivery, telecopier or telegram, or first class mail, certified or
registered with return receipt requested, and will be deemed to have been duly
given upon receipt if personally delivered, four days after mailing, if mailed,
or two hours after transmission, if delivered by telecopier or telegram, to the
respective persons named below:


 


	
  If
  to Company:

  	
  Whitney
  Information Network, Inc.

  
	
   

  	
  1612
  E. Cape Coral Parkway

  
	
   

  	
  Cape
  Coral, Florida 33904

  
	
   

  	
  Attn:
  General Counsel

  
	
   

  	
   

  
	
  If
  to Employee:

  	
  Anne
  Donoho

  
	
   

  	
  [address
  on file at Company]

  



 


Any
party may change such party’s address for notices by notice duly given pursuant
to this Section.


 


3.3             Headings


 


The
Section headings of this Agreement are intended for reference and may not
by themselves determine the construction or interpretation of this Agreement.


 


3.4                 Governing
Law


 


This
Agreement is to be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts entered into and wholly to be
performed within the State of Florida by Florida residents. Venue will be in
Lee, Broward, Dade or Palm Beach counties at the sole discretion of the
Company.


 


3.5                    Survival
and Assignment


 


This
Agreement will be binding on, and inure to the benefit of, the executors,
administrators, heirs, successors, and assigns of the parties; provided,
however, that except as expressly provided in this Agreement, this Agreement
may not be assigned either by Company or by Employee.


 


3.6              Withholdings


 


All
sums payable to Employee under this Agreement will be reduced by all federal,
state, local, and other withholdings and similar taxes and payments required by
applicable law.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


 


	
   

  	
  Whitney
  Information Network, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Charles M. Peck

  
	
   

  	
  Charles M. Peck

  
	
   

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anne Donoho

  
	
   

  	
  Anne
  Donoho

  



 


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