Exhibit 10.9
SKILLSOFT PLC
2002 SHARE OPTION
PLAN
(Amended December 5,
2006)
1.
Purposes of the Plan . The purposes of this 2002
Share Option Plan are:
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to attract and
retain the best available personnel for positions of substantial
responsibility,
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to provide
additional incentive to Employees, Inside Directors and
Consultants, and
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to promote the
success of the Company’s business.
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Options granted under the Plan may be Incentive
Share Options or Nonstatutory Share Options, as determined by the
Administrator at the time of grant.
2.
Definitions . As used herein, the following
definitions shall apply:
(a) “Administrator”
means the Board or any of its Committees as shall be administering
the Plan, in accordance with Section 4 of the Plan.
(b) “Applicable
Laws” means the requirements relating to the administration
of stock option plans under U.S. state corporate laws, U.S. federal
and state securities laws, the Code, any stock exchange or
quotation system on which the Ordinary Shares are listed or quoted
and the applicable laws of any foreign country or jurisdiction
where Options are, or will be, granted under the Plan and the laws
of Ireland.
(c) “Board
“ means the Board of Directors of the Company.
(d) “Change
in Control” means the occurrence of any of the following
events:
(i) Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting securities;
or
(ii) The
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets;
(iii) A
change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors
are Incumbent Directors. “Incumbent
Directors” means directors who either (A) are Directors
as of the effective date of the Plan, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of
at least a majority of the Incumbent Directors at the time of such
election or nomination (but will
not include an individual whose election or
nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the
Company);or
(iv) The
consummation of a merger or consolidation of the Company with any
other corporation, 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 its parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of
the Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation.
(e) “Code”
means the Internal Revenue Code of 1986, as amended.
(f) “Committee”
means a committee of Directors appointed by the Board in accordance
with Section 4 of the Plan.
(g) “Company”
means SkillSoft Public Limited Company, a public limited company
organized under the laws of Ireland.
(h) “Consultant”
means any natural person, including an advisor, engaged by the
company or a Parent or Subsidiary to render services to such
entity.
(i) “Director”
means a member of the Board.
(j) “Disability”
means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) “Employee”
means any person, including Officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. A
Service Provider shall not cease to be an Employee in the case of
(i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the
Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Share Options, no
such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of
absence approved by the Company is not so guaranteed, then three
(3) months following the 91st day of such leave any Incentive Share
Option held by the Optionee shall cease to be treated as an
Incentive Share Option and shall be treated for tax purposes as a
Nonstatutory Share Option. Neither service as a Director
nor payment of a director’s fee by the Company shall be
sufficient to constitute “employment” by the
Company.
(l) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(m) “Fair
Market Value” means, as of any date, the value of Ordinary
Shares determined as follows:
(i) If
the Ordinary Shares are listed on any established stock exchange or
a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the
closing sales price for such Ordinary Shares (or
the closing bid, if no sales were reported) as quoted on such
exchange or system on the date of determination (or on the most
recent market trading day if neither the closing sales price nor
the closing bid for the Ordinary Shares is quoted for the day of
determination), as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;
(ii) If
the Ordinary Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value
of a Share shall be the mean between the high bid and low asked
prices for Ordinary Shares on the day of determination (or on the
most recent market trading day if the bid and asked prices for the
Ordinary Shares are not quoted for the day of determination), as
reported in The Wall Street Journal or such other source as the
Administrator deems reliable; or
(iii) In
the absence of an established market for Ordinary Shares, the Fair
Market Value shall be determined in good faith by the
Administrator.
(n) “Incentive
Share Option” means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of
the Code and the regulations promulgated thereunder.
(o) “Inside
Director” means a Director who is an Employee.
(p) “Nonstatutory
Share Option” means an Option not intended to qualify as an
Incentive Share Option.
(q) “Notice
of Grant” means a written or electronic notice evidencing
certain terms and conditions of an individual
Option. The Notice of Grant is part of the Option
Agreement.
(r) “Officer”
means a person who is an officer of the Company within the meaning
of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(s) “Option”
means an option for Ordinary Shares granted pursuant to
the
Plan.
(t) “Option
Agreement” means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the
terms and conditions of the Plan.
(u) “Option
Exchange Program” means a program whereby outstanding Options
are surrendered in exchange for Options with a lower exercise
price.
(v) “Optioned
Share” means one of the Ordinary Shares subject to an
Option.
(w) “Optionee”
means the holder of an outstanding Option granted under the
Plan.
(x) “Ordinary
Shares” means the Ordinary Shares and/or related American
Depository Shares of the Company.
(y) “Parent”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(z) “Plan”
means this 2002 Share Option Plan.
(aa) “Rule
16b-3” means Rule 16b-3 of the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(bb) “Section 16(b)”
means Section 16(b) of the Exchange Act.
(cc) “Service
Provider” means an Employee, Inside Director or
Consultant.
(dd) “Share”
means a share of the Ordinary Shares, as adjusted in accordance
with Section 13 of the Plan.
(ee) “Subsidiary”
means a “subsidiary corporation”, whether now or
hereafter existing, as defined in Section 424(f) of the
Code.
3.
Ordinary Shares Subject to the Plan . Subject to
the provisions of Section 12 of the Plan, the maximum
aggregate number of Ordinary Shares that may be optioned and sold
under the Plan is 8,850,000 Ordinary Shares. The
Ordinary Shares shall be authorized, but unissued Ordinary
Shares.
If an Option expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant
to an Option Exchange Program, the unpurchased Ordinary Shares
which were subject thereto shall become available for future grant
or sale under the Plan (unless the Plan has terminated); provided,
however, that Ordinary Shares that have actually been issued under
the Plan, upon exercise of an Option, shall not be returned to the
Plan and shall not become available for future distribution under
the Plan.
4.
Administration of the Plan .
(a)
Procedure .
(i) Multiple
Administrative Bodies. Different Committees with respect
to different groups of Service Providers may administer the
Plan.
(ii) Section 162(m). To
the extent that the Administrator determines it to be desirable to
qualify Options granted hereunder as “performance-based
compensation” within the meaning of Section 162(m) of
the Code, the Plan shall be administered by a Committee of two or
more “outside directors” within the meaning of
Section 162(m) of the Code.
(iii) Rule
16b-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated
hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.
(iv) Other
Administration. Other than as provided above, the Plan
shall be administered by (A) the Board or (B) a
Committee, which committee shall be constituted to satisfy
Applicable Laws.
(b)
Powers of the Administrator . Subject to the
provisions of the Plan, and in the case of a Committee, subject to
the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its
discretion:
(i) to
determine the Fair Market Value;
(ii) to
select the Service Providers to whom Options may be
granted
hereunder;
(iii) to
determine the number of Ordinary Shares to be covered by each
Option granted hereunder;
(iv) to
approve forms of agreement for use under the Plan;
(v) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Option granted hereunder. Such terms
and conditions include, but are not limited to, the exercise price,
the time or times when Options may be exercised (which may be based
on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Option or the Ordinary Shares relating thereto, based
in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vi) to
reduce the exercise price of any Option to the then current Fair
Market Value if the Fair Market Value of the Ordinary Shares
covered by such Option shall have declined since the date the
Option was granted;
(vii) to
institute an Option Exchange Program;
(viii) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(ix) to
prescribe, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign
laws;
(x) to
modify or amend each Option (subject to Section 14(c) of the
Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is
otherwise provided for in the Plan;
(xi) to
authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option previously
granted by the Administrator;
(xii) to
make all other determinations deemed necessary or advisable for
administering the Plan.
(c)
Effect of Administrator’s Decision . The
Administrator’s decisions, determinations and interpretations
shall be final and binding on all Opt
