SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-K/A
AMENDMENT NO. 2
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 31, 2004
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE 0-25674
SKILLSOFT PUBLIC LIMITED COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
REPUBLIC OF IRELAND NONE
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
107 NORTHEASTERN BOULEVARD 03062
NASHUA, NEW HAMPSHIRE (ZIP CODE) (ADDRESS OF PRINCIPAL
EXECUTIVE OFFICES)
Registrant's telephone number, including area code: (603) 324-3000
Securities registered pursuant to section 12(b) of the Act: None
Securities Registered Pursuant to Section 12(g) of the Act:
(Title of Class)
Ordinary Shares, E0.11
Subscription Rights
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Indicate by check mark whether registrant is an accelerated filer (as defined in
Rule 12b-2 of the Exchange Act). Yes [X] No [ ]
The approximate aggregate market value of voting shares held by non-affiliates
of the registrant as of July 31, 2003 was $466,094,399.
On March 31, 2004, the registrant had outstanding 103,524,579 Ordinary Shares
(issued or issuable in exchange for the registrant's outstanding American
Depository Shares ("ADSs")).
Each American Depositary Share of the Company ("ADS") represents one ordinary
share, nominal value Euro 0.11 per share, of the Company. References to the ADSs
herein shall also include a reference to the underlying ordinary shares of the
Company.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
This Annual Report on Form 10-K/A is being filed as Amendment No. 2 to the
Annual Report on Form 10-K of SkillSoft Public Limited Company (the "Registrant"
or the "Company") filed with the Securities and Exchange Commission (the "SEC")
on April 15, 2004, for the purpose of amending Item 9A in response to comments
provided to the Company by the SEC.
2
SKILLSOFT PUBLIC LIMITED COMPANY
FORM 10-K/A
TABLE OF CONTENTS
PAGE
PART I
ITEM 9A. Controls and Procedures..................................................... 4
PART IV
ITEM 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K............. 4
Signatures............................................................................ 5
3
PART I
ITEM 9A. CONTROLS AND PROCEDURES
Following the merger of SmartForce PLC and SkillSoft Corporation on
September 6, 2002, we integrated the business processes, human resources,
disclosure controls and procedures, and internal controls of the two companies.
During this process, significant deficiencies in disclosure controls and
procedures and internal controls were identified predominantly with respect to
financial reporting at non-U.S. subsidiaries of the former SmartForce PLC and
our ability to process the consolidated financial closing cycle. The financial
and regulatory compliance reporting at non - US subsidiaries was related
primarily to delinquent statutory filings in Australia, France, The United
Kingdom, the Republic of Ireland and Singapore for subsidiaries of the former
SmartForce, PLC. Subsequent to the Merger, these filings were further delayed by
the requirement to reflect the results of the restated financial statements of
the historical SmartForce, PLC, which were filed with the SEC on September 22,
2003. These deficiencies resulted in a significant strain to the internal
resources and on the infrastructure of the finance organization and adversely
impacted both the year-end and quarter-end financial closing process for the
fiscal year ended January 31, 2003. External resources were engaged to assist
management in both the year-end and quarter-end financial closing process and in
identifying areas for improvement for the fiscal year ended January 31, 2003. In
addition, in fiscal years ended January 31, 2003 and 2004, permanent resources
and accounting process improvements have been added and implemented to improve
the non-U.S. finance operations, the financial closing process, and the overall
internal control environment. Additionally, by January 31, 2004 all of the
subsidiaries, with the exception of retail certification, were on one financial
system. Our independent auditors have informed us that they believe we have no
material weaknesses in internal controls at January 31, 2004. However they have
informed us of certain reportable conditions at that date, including financial
and regulatory compliance reporting at non-U.S. subsidiaries of the former
SmartForce PLC and our ability to process the financial closing cycle at certain
subsidiaries. The newly hired financial staff, focused corporate oversight and
the successful migration to one financial system improved the financial closing
process and allowed management to conclude that these significant deficiencies
did not collectively constitute a material weakness.
Under the supervision and with the participation of our management,
including our Chief Executive Officer and Chief Financial Officer we evaluated
the effectiveness of our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) as of January 31, 2004. Based on that evaluation, our
Chief Executive Officer and Chief Financial Officer have concluded that as a
result of the implementation of mitigating controls and process improvements
with respect to our disclosure controls and procedures, they were operating
effectively as of January 31, 2004. However, we believe that continuous
monitoring of these disclosure controls and procedures will be required.
No change in our internal control over financial reporting (as defined in
Rules 13a-15(f) and 15d-15(f)) under the Exchange Act occurred during the fiscal
quarter ended January 31, 2004 that has materially affected, or is reasonably
likely to materially affect, our internal control over financial reporting.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(c) Exhibits. The exhibits filed as part of this Annual Report on Form 10-K/A
are listed in the Exhibit Index immediately preceding such exhibits, and are
incorporated herein by reference.
4
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, this registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
SKILLSOFT PUBLIC LIMITED COMPANY
(Registrant)
By: /s/ Charles E. Moran
----------------------------
Charles E. Moran, President
and Chief Executive Officer
Date: April 14, 2005
5
EXHIBIT INDEX
EXHIBIT NO. TITLE
----------- -----
2.1 Agreement and Plan of Merger, dated as of June 10, 2002, by and
among SmartForce Public Limited Company, SkillSoft Corporation and
Slate Acquisition Corp. (Incorporated by reference to exhibit 2.1
to SkillSoft PLC's Current Report on Form 8-K dated June 14, 2002
(File No. 000-25674)).
3.1 Memorandum of Association of SkillSoft PLC as amended on March 24,
1992, March 31, 1995, April 28, 1998, January 26, 2000, July 10,
2001, September 6, 2002 and November 19, 2002 (Incorporated by
reference to exhibit 3.1 to SkillSoft PLC's Quarterly Report on
Form 10-Q for the fiscal quarter ended October 31, 2002 as filed
with the Securities and Exchange Commission on January 21, 2003
(File No. 000-25674)).
3.2 Articles of Association of SkillSoft PLC as amended on July 6,
1995, and April 28, 1998, January 26, 2000, July 10, 2001,
September 6, 2002 and November 19, 2002 (Incorporated by reference
to exhibit 3.2 to SkillSoft PLC's Quarterly Report on Form 10-Q for
the fiscal quarter ended October 31, 2002 as filed with the
Securities and Exchange Commission on January 21, 2003 (File No.
000-25674)).
4.1 Specimen certificate representing the ordinary shares of SkillSoft
PLC (Incorporated by reference to exhibit 4.1 to SkillSoft PLC's
Annual Report on Form 10-K for the fiscal year ended January 31,
2003 as filed with the Securities and Exchange Commission on April
29, 2003 (File No. 000-25674)).
4.2 Amended and Restated Deposit Agreement (including the form of
American Depositary Receipt), dated as of April 13, 1995 as amended
and restated as of September 4, 2002, among SkillSoft PLC, The Bank
of New York, as Depositary, and each Owner and Beneficial Owner
from time to time of American Depositary Receipts issued thereunder
(Incorporated by reference to Exhibit 4.1 to SkillSoft PLC's
Current Report on Form 8-K dated September 4, 2002 (File No.
000-256740)).
4.3 Amended and Restated Restricted Deposit Agreement (including the
form of American Depositary Receipt), dated as of November 30, 1995
and amended and restated as of September 4, 2002, among SkillSoft
PLC, The Bank of New York, as Depositary, and each Owner and
Beneficial Owner from time to time of American Depositary Receipts
issued thereunder (Incorporated by reference to exhibit 4.2 to
SkillSoft PLC's Current Report on Form 8-K dated September 4, 2002
(File No. 000-25674)).
4.4 Restricted Deposit Agreement (B) dated as of June 8, 1998 and
amended and restated as of September 4, 2002 among SkillSoft PLC,
The Bank of New York, and the owners and beneficial owners of
Restricted American Depositary Receipts (Incorporated by reference
to Exhibit 4.3 to SkillSoft PLC's Current Report on Form 8-K dated
September 4, 2002 (File No. 000-25674)).
4.5 Declaration of Subscription Rights dated as of October 4, 1998
(Incorporated by reference to exhibit 4.1 to SkillSoft PLC's Report
on Form 8-A filed with the Securities and Exchange Commission on
October 5, 1998).
4.6 Amendment to Declaration of Subscription Rights, dated as of June
10, 2002, of SkillSoft PLC (Incorporated by reference to exhibit
4.1 to SkillSoft PLC's Current Report on Form 8-K dated June 10,
2002 (File No. 000-25674)).
6
4.7 Second Amendment to Declaration of Subscription Rights, dated as of
October 9, 2002, of SkillSoft PLC (Incorporated by reference to
exhibit 4.2 to SkillSoft PLC's Current Report on Form 8-K dated
June 10, 2002 (File No. 000-25674)).
10.1** 1990 Share Option Scheme (Incorporated by reference to exhibit 10.1
to SkillSoft PLC's Registration Statement on Form F-1 declared
effective with the Securities and Exchange Commission on April 13,
1995 (File No. 333-89904)).
10.2** 1994 Share Option Plan (Incorporated be reference to exhibit 10.2
to SkillSoft PLC's Registration Statement on Form F-1 declared
effective with the Securities and Exchange Commission on April 13,
1995 (File No. 333-89904)).
10.3** 1995 Employee Share Purchase Plan (Incorporated by reference to
exhibit 10.3 to SkillSoft PLC's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 2002 as filed with the Securities
and Exchange Commission on August 14, 2002 (File No. 000-25674)).
10.4** Form of Indemnification Agreement between CBT Systems USA, Ltd.
(formerly, Thornton Holdings, Ltd.) and its directors and officers
dated as of April, 1995 (Incorporated by reference to exhibit 10.5
to SkillSoft PLC's Registration Statement on Form F-1 declared
effective with the Securities and Exchange Commission on April 13,
1995 (File No. 333-89904)).
10.5** Form of Indemnification Agreement between SmartForce (USA) and its
directors and officers dated as of September 6, 2002 (Incorporated
by reference to exhibit 10.5 to SkillSoft PLC's Annual Report on
Form 10-K for the fiscal year ended January 31, 2003 as filed with
the Securities and Exchange Commission on April 29, 2003 (File No.
000-25674)).
10.6** 1996 Supplemental Stock Plan (Incorporated by reference to exhibit
10.16 to SkillSoft PLC's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 as filed with the Securities and
Exchange Commission on March 30, 1997 (File No. 0-25674)).
10.7** 2002 Share Option Plan (Incorporated by reference to exhibit 10.34
to SkillSoft PLC's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2002 as filed with the Securities and
Exchange Commission on August 14, 2002 (File No. 000-256740)).
10.8** 2001 Outside Director Option Plan (Incorporated by reference to
exhibit 10.1 to SkillSoft PLC's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001 as filed with the Securities
and Exchange Commission on November 14, 2001 (File No. 000-25674)).
10.9 Agreement and Release, effective as of September 13, 2002, between
SmartForce PLC and Jeff Newton (Incorporated by reference to
exhibit 10.5 to SkillSoft PLC's Quarterly Report on Form 10-Q for
the quarter ended October 31, 2002 as filed with the Securities and
Exchange Commission on January 21, 2003 (File No. 000-25674)).
10.10 Separation Agreement and Release, effective as of May 8, 2002,
between SmartForce PLC and Thomas Francis McKeagney (Incorporated
by reference to exhibit 10.6 to SkillSoft PLC's Quarterly Report on
Form 10-Q for the quarter ended October 31, 2002 as filed with the
Securities and Exchange Commission on January 21, 2003 (File No.
000-25674)).
10.11** Amended and Restated Employment Agreement dated June 10, 2002
between SkillSoft PLC and Gregory M. Priest (Incorporated by
reference to exhibit 10.30 to SkillSoft PLC's Amendment No. 1 to
Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on July 30, 2002 (File No. 333-90872)).
10.12** Employment Agreement dated June 10, 2002 between SkillSoft PLC and
Charles E. Moran (Incorporated by reference to exhibit 10.31 to
7
SkillSoft PLC's Amendment No. 1 to Registration Statement on Form
S-4 as filed with the Securities and Exchange Commission on July
30, 2002 (File No. 333-90872)).
10.13** Employment Agreement dated as of June 10, 2002 between SkillSoft
PLC and Jerald A. Nine, Jr. (Incorporated by reference to exhibit
10.33 to SkillSoft PLC's Amendment No. 1 to Registration Statement
on Form S-4 as filed with the Securities and Exchange Commission on
July 30, 2002 (File No. 333-90872)).
10.14 Registration Rights Agreement dated as of June 10, 2002 between
SkillSoft PLC and Warburg Pincus Ventures, L.P. (Incorporated by
reference to exhibit 10.27 to SkillSoft PLC's Amendment No. 1 to
Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on July 30, 2002 (File No. 333-90872)).
10.15** Employment Agreement dated January 12, 1998 between SkillSoft
Corporation and Mark A. Townsend (Incorporated by reference to
exhibit 10.15 to SkillSoft PLC's Annual Report on Form 10-K for the
fiscal year ended January 31, 2003 as filed with the Securities and
Exchange Commission on April 29, 2003 (File No. 000-25674)).
10.16** Employment Agreement dated January 12, 1998 between SkillSoft
Corporation and Thomas J. McDonald (Incorporated by reference to
exhibit 10.16 to SkillSoft PLC's Annual Report on Form 10-K for the
fiscal year ended January 31, 2003 as filed with the Securities and
Exchange Commission on April 29, 2003 (File No. 000-25674)).
10.17** Employment Agreement dated effective September 6, 2002 between
SkillSoft PLC and Colm Darcy (Incorporated by reference to exhibit
10.17 to SkillSoft PLC's Annual Report on Form 10-K for the fiscal
year ended January 31, 2003 as filed with the Securities and
Exchange Commission on April 29, 2003 (File No. 000-25674)).
10.18 Lease dated February 18, 1998, as amended, between SkillSoft
Corporation and Five N Associates (Incorporated by reference to
exhibit 10.18 to SkillSoft PLC's Annual Report on Form 10-K for the
fiscal year ended January 31, 2003 as filed with the Securities and
Exchange Commission on April 29, 2003 (File No. 000-25674)).
10.19 Fifth Supplemental Agreement dated November 26, 2001 to the Lease
between SkillSoft Corporation and Five N Associates (Incorporated
by reference to exhibit 10.19 to SkillSoft PLC's Annual Report on
Form 10-K for the fiscal year ended January 31, 2003 as filed with
the Securities and Exchange Commission on April 29, 2003 (File No.
000-25674)).
10.20 Lease dated May 25, 2001 between 1987 Tamposi Limited Partnership
and SkillSoft Corporation (Incorporated by reference to exhibit
10.20 to SkillSoft PLC's Annual Report on Form 10-K for the fiscal
year ended January 31, 2003 as filed with the Securities and
Exchange Commission on April 29, 2003 (File No. 000-25674)).
10.21*** Fleet National Bank Commercial Loan Agreement, dated as of June 24,
2003, by and among SkillSoft Corporation, SkillSoft PLC and Fleet
National Bank (Incorporated by reference to exhibit 10.1 to
SkillSoft PLC's Quarterly Report on Form 10-Q for the quarter ended
July 31, 2003 as filed with the Securities and Exchange Commission
on September 15, 2003 (File No. 000-25674)).
10.22 Revolving Line of Credit Promissory Note payable to Fleet National
Bank, dated June 24, 2003, executed by SkillSoft Corporation and
SkillSoft PLC (Incorporated by reference to exhibit 10.2 to
SkillSoft PLC's Quarterly Report on Form 10-Q for the quarter ended
July 31, 2003 as filed with the Securities and Exchange Commission
on September 15, 2003 (File No. 000-25674)).
10.23 Security Agreement, dated as of June 24, 2003, by and between
SkillSoft Corporation and Fleet National Bank (Incorporated by
reference to exhibit 10.3 to SkillSoft PLC's Quarterly Report on
Form 10-Q for the quarter ended July 31, 2003 as filed with the
8
Securities and Exchange Commission on September 15, 2003 (File No.
000-25674)).
10.24 Settlement Agreement and General Release, dated as of July 21,
2003, by and between The Thompson Corporation, National Educational
Training Group and SkillSoft Corporation (Incorporated by reference
to exhibit 10.4 to SkillSoft PLC's Quarterly Report on Form 10-Q
for the quarter ended July 31, 2003 as filed with the Securities
and Exchange Commission on September 15, 2003 (File No.
000-25674)).
10.25 Stipulation of Settlement, dated November 26, 2003 (Incorporated by
reference to exhibit 10.1 to SkillSoft PLC's Quarterly Report on
Form 10-Q for the quarter ended October 31, 2003 as filed with the
Securities and Exchange Commission on December 15, 2003 (File No.
000-25674)).
10.26** Indemnification Agreement, dated November 13, 2003, by and between
SkillSoft Corporation and P. Howard Edelstein (Incorporated by
reference from exhibit 10.2 to SkillSoft PLC's Quarterly Report on
Form 10-Q for the quarter ended October 31, 2003 as filed with the
Securities and Exchange Commission on December 15, 2003 (File No.
000-25674)).
10.27+** Indemnification Agreement, dated March 4, 2004, by and between
SkillSoft Corporation and William Meagher.
21.1+ List of Significant Subsidiaries.
23.1+ Consent of Ernst & Young LLP.
23.2+ Information Regarding Consent of Arthur Andersen LLP.
31.1+ Certification of SkillSoft PLC's Chief Executive Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Annual Report on Form 10-K for the fiscal
year ended January 31, 2004).
31.2+ Certification of SkillSoft PLC's Chief Financial Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Annual Report on Form 10-K for the fiscal
year ended January 31, 2004).
31.3++ Certification of SkillSoft PLC's Chief Executive Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Amendment No. 1 on Form 10-K/A).
31.4++ Certification of SkillSoft PLC's Chief Financial Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Amendment No.1 on Form 10-K/A).
31.5* Certification of SkillSoft PLC's Chief Executive Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Amendment No. 2 on Form 10-K/A).
31.6* Certification of SkillSoft PLC's Chief Financial Officer pursuant
to Rule 13a-14(a)/ Rule 15(d)-14(a) under the Securities Exchange
Act of 1934 (regarding Amendment No.2 on Form 10-K/A).
32.1+ Certification of SkillSoft PLC's Chief Executive Officer pursuant
to Rule 13a-14(b)/ Rule 15d-14(b) under the Securities Exchange Act
of 1934, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
32.2+ Certification of SkillSoft PLC's Chief Financial Officer pursuant
to Rule 13a-14(b)/ Rule 15d-14(b) under the Securities Exchange Act
of 1934, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
9
---------------
+ Previously filed with Annual Report on Form 10-K filed with the
Securities and Exchange Commission on April 15, 2004.
++ Previously filed with Annual Report on Form 10-K/A filed with the
Securities and Exchange Commission on June 3, 2003.
* Filed herewith.
** Denotes management or compensatory plan or arrangement required to be
filed by registrant pursuant to Item 15(c) of this report on Form 10-K.
*** Confidential treatment requested for certain portions, which portions
have been separately filed with the Securities and Exchange Commission.
10