Exhibit 4.3
TRINTECH GROUP PLC
2009 EMPLOYEE SHARE PURCHASE
PLAN
The following constitute the
provisions of the 2009 Employee Share Purchase Plan of Trintech
Group Plc.
1.
Purpose . The purpose of the Plan is to provide employees of
the Company and its Designated Subsidiaries with an opportunity to
acquire Ordinary Shares of the Company through accumulated payroll
deductions. It is the intention of the Company to have the Plan
qualify as an “Employee Share Purchase Plan” under
Section 423 of the Internal Revenue Code of 1986, as amended
(although the Company makes no undertaking or representation to
maintain such qualification). The provisions of the Plan,
accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2.
Definitions .
(a) “ Board ”
shall mean the Board of Directors of the Company.
(b) “ Code ”
shall mean the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code herein will be a reference to
any successor or amended section of the Code.
(c) “ Company ”
shall mean Trintech Group PLC, or any successor thereto.
(d) “ Compensation
” shall mean an Employee’s base straight time gross
earnings and commissions, but exclusive of payments for overtime,
shift premium, incentive compensation, incentive payments, bonuses
and other compensation.
(e) “ Designated
Subsidiary ” shall mean any Subsidiary that has been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(f) “ Employee ”
shall mean any individual who is a common law employee of an
Employer for tax purposes whose customary employment with the
Employer is at least twenty (20) hours per week and more than
five (5) months in any calendar year. For purposes of the
Plan, the employment relationship shall be treated as continuing
intact while the individual is on sick leave or other leave of
absence approved by the Employer. Where the period of leave exceeds
90 days and the individual’s right to reemployment is not
guaranteed either by statute or by contract, the employment
relationship shall be deemed to have terminated on the 91st day of
such leave. The Board, in its discretion, from time to time may,
prior to an Enrollment Date for all options to be granted on such
Enrollment Date, determine (on a uniform and nondiscriminatory
basis) that the definition of Employee will or will not include an
individual if he or she: (i) has not completed at least two
(2) years of service since his or her last hire date (or such
lesser period of time as may be determined by the Board in its
discretion), (ii) customarily works not more than twenty
(20) hours per week (or such lesser period of time as may be
determined by the Board in its discretion), (iii) customarily
works not more than five (5) months per calendar year (or such
lesser period of time as may be determined by the Board in its
discretion), (iv) is an officer or other manager, or
(v) is a highly compensated employee under Section 414(q)
of the Code.
(g) “ Employer ”
means any one or all of the Company and its Designated
Subsidiaries.
(h) “ Enrollment Date
” shall mean the first Trading Day of each Offering
Period.
(i) “ Exercise Date
” shall mean the last Trading Day of each Offering Period.
The Board, in its discretion, from time to time may, prior to an
Enrollment Date for all options to be granted on such Enrollment
Date, determine (on a uniform and nondiscriminatory basis) when the
Exercise Date will occur during an Offering Period.
(j) “ Fair Market Value
” shall mean, as of any date, the value of the 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 Global Select
Market, Nasdaq Global Market or Nasdaq Capital Market, its Fair
Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such
exchange or system for the last market Trading Day prior to the
date of determination, as reported in The Wall Street
Journal or such other source as the Board deems
reliable;
(ii) If the Ordinary Shares are
regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean of
the closing bid and asked prices for the Ordinary Shares on the
last market Trading Day prior to the date of determination, as
reported in The Wall Street Journal or such other source as
the Board deems reliable; or
(iii) In the absence of an
established market for the Ordinary Shares, the Fair Market Value
thereof shall be determined in good faith by the Board;
(k) “ Offering Periods
” shall mean the periods of approximately six (6) months
during which an option granted pursuant to the Plan may be
exercised, commencing on (i) the first Trading Day on or after
March 1 of each year and terminating on the last Trading Day
in the Offering Period ending the following August 31,
approximately six (6) months later, and (ii) commencing
on the first Trading Day on or after September 1 of each year
and terminating on the last Trading Day in the Offering Period
ending the following February 28 (or February 29, as
applicable) approximately six (6) months later. The duration
and timing of Offering Periods may be changed pursuant to
Sections 4 and 20 of this Plan.
(l) “ Ordinary Shares
” shall mean the ordinary shares of the Company.
(m) “ Parent ”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(n) “ Plan ”
shall mean this 2009 Employee Share Purchase Plan.
(o) “ Purchase Price
” shall mean 85% of the Fair Market Value of an Ordinary
Share on the Enrollment Date or on the Exercise Date, whichever is
lower; provided however, that in no event shall the Purchase Price
be less than the par value of an Ordinary Share and, provided
further, that the Purchase Price may be adjusted by the Board
pursuant to Section 20.
(p) “ Reserves ”
shall mean the number of Ordinary Shares covered by each option
under the Plan which have not yet been exercised and the number of
Ordinary Shares which have been authorized for issuance under the
Plan but not yet placed under option.
(q) “ Subsidiary
” shall mean a “subsidiary corporation,” whether
now or hereafter existing, as defined in Section 424(f) of the
Code.
(r) “ Trading Day
” shall mean a day on which national stock exchanges and a
national trading system are open for trading.
3.
Eligibility .
(a) Any Employee who shall be
employed by the Employer on a given Enrollment Date shall be
eligible to participate in the Plan, subject to the requirements of
Section 5.
(b) Any provisions of the Plan to
the contrary notwithstanding, no Employee shall be granted an
option under the Plan (i) to the extent that, immediately
after the grant, such Employee (or any other person whose shares
would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own issued capital shares of
the Company or any Parent or Subsidiary and/or hold outstanding
options to acquire such shares possessing five percent (5%) or
more of the total
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combined voting power or value of all classes of
the capital shares of the Company or of any Parent or Subsidiary,
or (ii) to the extent that his or her rights to acquire shares
under all employee share purchase plans of the Company and any
Parent or Subsidiary accrues at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) worth of shares (determined at the fair
market value of the shares at the time such option is granted) for
each calendar year in which such option is outstanding at any time,
as determined in accordance with Section 423 of the Code and
the regulations thereunder.
4.
Offering Periods . The Plan shall be implemented by
consecutive Offering Periods with a new Offering Period commencing
on the first Trading Day on or after March 1 and
September 1 each year, or on such other date as the Board
shall determine, and continuing thereafter until terminated in
accordance with Section 20 hereof. The Board shall have the
power to change the duration of Offering Periods (including the
commencement dates thereof) with respect to future offerings
without shareholder approval if such change is announced at least
five (5) days prior to the scheduled beginning of the first
Offering Period to be affected thereafter.
5.
Participation .
(a) An eligible Employee may become
a participant in the Plan by (i) completing a subscription
agreement authorizing payroll deductions in the form of
Exhibit A to this Plan and filing it with the Company’s
payroll office (or its designee) prior to the applicable Enrollment
Date or (ii) following an electronic or other enrollment
procedure determined by the Company.
(b) Payroll deductions for a
participant shall commence on the first payroll following the
Enrollment Date and shall end on the last payroll in the Offering
Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10
hereof.
6.
Payroll Deductions .
(a) At the time a participant
enrolls in the Plan, he or she shall elect to have payroll
deductions made on each pay day during the Offering Period (subject
to Section 5(b)) in an amount not exceeding fifteen percent
(15%) of the Compensation which he or she receives on each pay
day during the Offering Period.
(b) All payroll deductions made for
a participant shall be credited to his or her account under the
Plan and shall be withheld in whole percentages only. A participant
may not make any additional payments into such account.
(c) A participant may discontinue
his or her participation in the Plan as provided in Section 10
hereof, or may increase or decrease the rate of his or her payroll
deductions during the Offering Period by (i) properly
completing and filing with the Company (or its designee) a new
subscription agreement authorizing a change in payroll deduction
rate or (ii) following an electronic or other procedure
prescribed by the Company. If a participant has not followed such
procedures to change the rate of payroll deductions, the rate of
his or her payroll deductions will continue at the originally
elected rate throughout the Offering Period and future Offering
Periods (unless terminated as provided in Section 10). The
Board may, in its discretion, limit the number of participation
rate changes during any Offering Period and may establish such
other conditions or limitations as it deems appropriate for Plan
administration. The change in rate shall be effective with the
first full payroll period following five (5) business days
after the Company’s (or its designee’s) receipt of the
new subscription agreement or the participant’s completion of
an electronic or other procedure prescribed by the Company unless
the Company elects to process a given change in participation more
quickly. A participant’s subscription agreement shall remain
in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
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(d) Notwithstanding the foregoing,
to the extent necessary to comply with Section 423(b)
(8) of the Code and Section 3(b) hereof, a
participant’s payroll deductions may be decreased to zero
percent (0%) at any time during an Offering Period. Subject to
Section 423(b)(8) of the Code and Section 3(b) hereof,
payroll deductions shall recommence at the rate provided in such
participant’s subscription agreement at the beginning of the
first Offering Period which is scheduled to end in the following
calendar year, unless terminated by the participant as provided in
Section 10 hereof.
(e) At the time the option is
exercised, in whole or in part, or at the time some or all of the
Company’s Ordinary Shares issued under the Plan is disposed
of, the participant must make adequate provision for the
Company’s or Employer’s federal, state, or other tax
withholding obligations, if any, which arise upon the exercise of
the option or the disposition of the Ordinary Shares. At any time,
the Company or the Employer may, but shall not be obligated to,
withhold from the participant’s compensation the amount
necessary for the Company or the Employer to meet applicable
withholding obligations, including any withholding required to make
available to the Company or the Employer any tax deductions or
benefits attributable to sale or early disposition of Ordinary
Shares by the Employee. In addition, the Company or the Employer
may, but will not be obligated to, withhold from the proceeds of
the sale of Ordinary Shares or any other method of withholding the
Company or the Employer deems appropriate.
7. Grant
of Option . On the Enrollment Date of each Offering Period,
each eligible Employee participating in such Offering Period shall
be granted an option to acquire on the Exercise Date of such
Offering Period (at the applicable Purchase Price) up to a number
of shares of the Company’s Ordinary Shares determined by
dividing such Employee’s payroll deductions accumulated prior
to such Exercise Date and retained in the Participant’s
account as of the Exercise Date by the applicable Purchase Price;
provided that in no event shall an Employee be permitted to acquire
during each Offering Period more than 10,000 of the Company’s
Ordinary Shares (subject to any adjustment pursuant to
Section 19), and provided further that such acquisition shall
be subject to the limitations set forth in Sections 3(b) and
12 hereof. The Board may, for future Offering Periods, increase or
decrease, in its absolute discretion, the maximum number of the
Company’s Ordinary Shares an Employee may acquire during each
Offering Period. Exercise of the option shall occur as provided in
Section 8 hereof, unless the participant has withdrawn
pursuant to Section 10 hereof. The option shall expire on the
last day of the Offering Period.
8.
Exercise of Option .
(a) Unless a participant withdraws
from the Plan as provided in Section 10 hereof, his or her
option for the acquisition of shares shall be exercised
automatically on the Exercise Date, and the maximum number of full
shares subject to option shall be acquired for such participant at
the applicable Purchase Price with the accumulated payroll
deductions in his or her account. No fractional shares shall be
acquired; any payroll deductions accumulated in a
participant’s account which are not sufficient to acquire a
full share shall be retained in the participant’s account for
the subsequent Offering Period, subject to earlier withdrawal by
the participant as provided in Section 10 hereof. Any other
monies left over in a participant’s account after the
Exercise Date shall be returned to the participant. During a
participant’s lifetime, a participant’s option to
acquire shares hereunder is exercisable only by him or
her.
(b) If the Board determines that, on
a given Exercise Date, the number of shares with respect to which
options are to be exercised may exceed (i) the number of
Ordinary Shares that were available for sale under the Plan on the
Enrollment Date of the applicable Offering Period, or (ii) the
number of shares available for sale under the Plan on such Exercise
Date, the Board may in
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its sole discretion (x) provide that the
Company shall make a pro rata allocation of the Ordinary Shares
available for acquisition on such Enrollment Date or Exercise Date,
as applicable, in as uniform a manner as shall be practicable and
as it shall determine in its sole discretion to be equitable among
all participants exercising options to acquire Ordinary Shares on
such Exercise Date, and continue the Offering Period then in
effect, or (y) provide that the Company shall make a pro rata
allocation of the shares available for acquisition on such
Enrollment Date or Exercise Date, as applicable, in as uniform a
manner as shall be practicable and as it shall determine in its
sole discretion to be equitable among all participants exercising
options to acquire Ordinary Shares on such Exercise Date, and
terminate any Offering Period then in effect pursuant to
Section 20 hereof. The Company may make pro rata allocation of
the shares available on the Enrollment Date of any applicable
Offering Period pursuant to the preceding sentence, notwithstanding
any authorization of additional shares for issuance under the Plan
by the Company’s shareholders subsequent to such Enrollment
Date.
9.
Delivery . Shares acquired by a participant upon exercise of
his or her option shall, at the election of the participant, be
issued (i) in the name of the participant or the participant
and the participant’s spouse, or (ii) in the name of AIB
Custodial Nominees Limited, having its registered office at P.O.
Box 518, IFSC, Dublin 1, Ireland, to hold the shares as
nominee and on behalf of the participant and subject to the
participant’s instructions.
10.
Withdrawal .
(a) A participant may withdraw all
but not less than all the payroll deductions credited to his or her
account and
