Exhibit 4.1
TRINTECH GROUP PLC
SHARE OPTION PLAN
2007
(Approved at AGM 25 July,
2007)
(Amended and Restated on
,
2009)
Established by a resolution of the
Board of the Company on 21 st May, 2007 and approved by shareholders on 25
th
July, 2007
and as amended from time to time by
resolutions of the Board of Directors and Ordinary resolutions of
the company.
A & L GOODBODY
TABLE OF CONTENTS
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1.
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ESTABLISHMENT
AND PURPOSE
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3
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2.
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DEFINITIONS
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3
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3.
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ADMINISTRATION
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5
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4.
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SHARES
AVAILABLE FOR GRANTS
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6
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5.
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ELIGIBILITY
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7
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6.
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TERMS AND
CONDITIONS OF OPTIONS
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7
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7.
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PROCEDURE ON
EXERCISE OF OPTIONS
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9
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8.
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ADJUSTMENT OF
SHARES
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10
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9.
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TAKEOVER,
MERGER OR OTHER REORGANISATION
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10
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10.
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LIMITATION ON
RIGHTS
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11
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11.
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WITHHOLDING
TAXES
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11
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12.
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GENERAL
PROVISIONS
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12
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13.
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GOVERNING LAW
& DISPUTES
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13
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14.
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LIABILITY OF
THE COMPANY
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13
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2
TRINTECH GROUP PLC
SHARE OPTION PLAN
2007
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1.
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ESTABLISHMENT AND PURPOSE
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The Plan is established pursuant to
a resolution of the Board on 21 May, 2007 but shall be
subject to approval by the Company’s shareholders within
twelve months after such date. The purpose of the Plan is to
establish an employees’ share scheme within the meaning of
Section 2 of the Companies (Amendment) Act 1983 as a long term
incentive plan to promote the long-term success of the Company and
the creation of stockholder value by (a) encouraging Key
Employees to focus on critical long-range objectives,
(b) encouraging the attraction and retention of Key Employees
with exceptional qualifications and (c) linking Key Employees
directly to stockholder interests through increased stock
ownership. The Plan seeks to achieve this purpose by providing for
Awards in the form of Options. The Board may, in respect of Key
Employees primarily liable to taxation outside the Republic of
Ireland on their remuneration, alter the provisions of the Plan and
of Awards to take account of overseas taxation or securities laws
as set out in Clause 12.2.2.
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2.1.
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In the Plan,
the following expressions bear the following meanings and all
references to statutes are to Irish statutes unless stated
otherwise:
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Act means the Companies Act 1963 as amended from
time to time;
Adoption Date
means the date on which this Plan is
adopted by the Board;
Award means any award of an Option under the
Plan;
Board means the Company’s board of directors, as
constituted from time to time;
Change in Control
means:
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(a)
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the
consummation of a merger or consolidation of the Company with or
into another entity or any other corporate reorganization, if more
than 50% of the combined voting power of the continuing or
surviving entity’s issued shares or securities outstanding
immediately after such merger, consolidation or other
reorganization is owned by persons who were not shareholders of the
Company immediately prior to such merger, consolidation or other
reorganization;
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(b)
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the sale,
transfer or other disposition of all or substantially all of the
Company’s assets;
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(c)
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a change in the
composition of the Board, as a result of which fewer than 50% of
the incumbent directors are directors who either (i) had been
directors of the Company on the date 24 months prior to the date of
the event that may constitute a Change in Control (the
“original directors”) or (ii) were elected, or
nominated for election, to the Board with the affirmative votes of
at least a majority of the aggregate of the original directors who
were still in office at the time of the election or nomination and
the directors whose election or nomination was previously so
approved;
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(d)
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any transaction
as a result of which any person is the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
at least 50% of the total voting power represented by the
Company’s then outstanding voting securities (i.e. issued
shares). For purposes of this Subsection (d), the term
“person” shall have the same meaning as when used in
sections 13(d) and 14(d) of the Exchange Act but shall exclude
(i) a trustee or other fiduciary holding shares under an
employee benefit plan of the Company or of a Subsidiary and
(ii) a company owned directly or indirectly by the
shareholders of the Company in substantially the same proportions
as their ownership of the ordinary shares of the Company;
or
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(e)
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a transaction
as a result of which a person or company obtains control of the
Company in pursuance of a compromise or arrangement sanctioned by
the court under Section 201 of the Act or becomes bound or
entitled to acquire Shares in the Company under Section 204 of
the Act.
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3
A transaction shall not constitute a
Change in Control if its sole purpose is to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s issued shares immediately
before such transaction.
Code means the U.S. Internal Revenue Code of 1986, as
amended. Reference to a specific section of the Code or regulation
thereunder shall include such section or regulation, any valid
regulation promulgated under such section, and any comparable
provision of any future legislation or regulation amending,
supplementing or superseding such section or regulation;
Committee means a committee of the Board as may be
designated by the Board to administer the Plan, as described in
Clause 2;
Company means Trintech Group Plc, an Irish company, or
any successor company;
Date of Grant
means, with respect to an Option,
the effective date of the resolution of the Committee approving the
grant of such Option or such later date as otherwise specified in
the Committee resolution approving the grant of such
Option;
Exchange Act
means the U.S. Securities Exchange
Act of 1934, as amended. Reference to a specific section of the
Exchange Act or regulation thereunder shall include such section or
regulation, any valid regulation promulgated under such section,
and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such section or
regulation;
Exercise Price
means the amount for which one Share
may be purchased or subscribed upon exercise of an Option, as
specified in the applicable Share Option Agreement;
ISO means an Option intended to qualify as an
incentive stock option described in section 422(b) of the Code and
the regulations thereunder;
Internal Revenue
Service means the U.S.
Internal Revenue Service;
Key Employee
means (a) a key employee of the
Company or of a Subsidiary, as determined by the Committee, or
(b) an executive director holding salaried employment or
office of the Company or a Subsidiary;
Market Value
means the market price of Shares,
determined by the Committee as follows:
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(a)
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if Shares are
traded on the National Market System of NASDAQ or any other
recognised securities exchange regulated by the Securities and
Exchange Commission (or on any other recognised stock exchange on
which Shares may then be listed or dealt in and if more than one,
the principal exchange on which Shares may then be listed) on the
date in question, then the Market Value shall be equal to the
higher of par and the closing price reported for such date by the
applicable composite-transactions report or any other comparable or
equivalent report prepared by the relevant regulatory authority
governing the securities exchange on which the Shares are listed or
dealt; and
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(b)
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if (a) is
not applicable, then the Market Value shall be determined by the
Committee in good faith on such basis as it deems
appropriate.
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Whenever possible, the determination
of Market Value by the Committee shall be based on the prices
reported in the most recent edition of The Wall Street Journal.
Such determination shall be conclusive and binding on all
persons.
Nominated Employee
means a Key Employee who shall have
been nominated for the purpose of the Plan under Clause
3.2;
NSO means an employee stock option not described in
sections 422 or 423 of the Code;
Option means an ISO or NSO granted under the Plan and
entitling the holder to acquire Shares by subscription or
purchase;
Participant
means any Nominated Employee who is
for the time being the holder of an Option;
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Plan means this Trintech Group Plc Share Option Plan
2007, as it may be amended from time to time;
Securities and Exchange
Commission means the U.S.
Securities and Exchange Commission;
Share means one ordinary share of US$0.0027 in the
capital of the Company and such expression shall if the context
admits or requires mean two such ordinary shares as may be
represented by one American Depositary Share (and may be evidenced
by one American Depositary Receipt) or such other ratio,
established by the Company from time to time, of ordinary shares to
American Depositary Shares (as may be evidenced by American
Depositary Receipts);
Share Option Agreement
means the agreement between the
Company and a Participant which contains the terms, conditions and
restrictions pertaining to his or her Option;
Subsidiary
means a subsidiary undertaking which
is, for the time being, a subsidiary of the Company within the
meaning of Section 155 of the Act;
US Participant
means any Participant who, at the
time the Option is granted, is a citizen or resident of the United
States of America for federal income tax purposes;
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2.2.
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Where the
context permits the singular will include the plural and vice versa
and the masculine will include the feminine.
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2.3.
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References to
any act or legislation shall include any statutory modification,
amendment or re-enactment thereof.
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2.4.
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The headings
contained in the Plan are for reference purposes only and do not
affect its meaning or construction.
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2.5.
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In the event
any provision of the Plan shall be held illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining
parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been
included.
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3.1.
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Committee
Composition
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3.1.1.
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Multiple
Administrative Bodies :
The Plan may be administered by different Committees with respect
to different groups of Participants.
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3.1.2.
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Section 162(m) : To the extent that the Committee determines it
to be desirable to qualify Options granted hereunder to US
Participants as “performance-based compensation” within
the meaning of Section 162(m) of the Code, the Plan shall, in
respect of such US Participants, be administered by a Committee of
two or more “outside directors” within the meaning of
Section 162(m) of the Code.
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3.1.3.
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Rule
16b-3 : To the extent
desirable to qualify transactions hereunder as exempt under Rule
16b-3 of the Exchange Act (“the Rule 16b-3”), the
transactions contemplated hereunder shall be structured to satisfy
the requirements for exemption under Rule 16b-3.
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3.1.4.
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Other
Administration : Other
than as provided above, the Plan shall be administered by a
Committee, which committee shall be constituted to satisfy all
applicable laws, rules and regulations.
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3.2.
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Committee
Responsibilities and Authority
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Subject to the provisions of the
Plan, the Committee shall have the authority, in its discretion
to:
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3.2.1.
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nominate the
Key Employees who are to receive Awards under the Plan;
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3.2.2.
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determine the
type, number, vesting requirements and other conditions of such
Awards;
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5
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3.2.3.
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interpret the
Plan and Share Option Agreements made thereunder;
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3.2.4.
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approve forms
of Share Option Agreement for use under the Plan;
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3.2.5.
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prescribe,
amend and rescind rules and regulations relating to the Plan,
including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under
Irish, U.S. state or federal tax laws or other foreign tax
laws;
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3.2.6.
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modify or amend
each Option (not inconsistent with the terms 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 or the Share Option
Agreement;
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3.2.7.
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authorise any
person to execute on behalf of the Company any instrument required
to effect the grant of an Option previously granted by the
Committee; and
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3.2.8.
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make all other
decisions relating to the operation of the Plan.
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The Committee may adopt such rules
or guidelines as it deems appropriate to implement the Plan. The
Committee’s determination under the Plan shall be final and
binding on all persons and shall be given maximum deference
permitted by law.
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4.
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SHARES
AVAILABLE FOR GRANTS
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The Company shall keep available
sufficient authorised but unissued Shares to meet in full the
exercise of Options. Subject to Clause 4.2 below, the aggregate
number of Shares over which Options may be awarded under the Plan
and the Trintech Group plc Share Option Plan for Directors and
Consultants 2007 shall not exceed 5,600,000 Shares or 2,800,000
American Depositary Shares as may be evidenced by American
Depositary Receipts (or such other number of American Depositary
Shares as represented by the ratio, established by the Company from
time to time, of ordinary shares to American Depositary Shares, as
may be evidenced by American Depositary Receipts). The limitation
of this Clause 4.1 shall be subject to adjustment pursuant to
Clause 8.1.
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4.2.1.
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If any Options
are cancelled or forfeited, or if any Options terminate or lapse
for any reason before being exercised, then the number of Shares to
which such Options relate (or related) shall again become available
for Awards under the Plan and shall not be counted for the Option
limits set out at Clause 4.1 above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be
treated as a cancellation of the Option and the grant of a new
Option.
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4.2.2.
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The provisions
of Clause 4.2.1 shall also apply to any rights under the Trintech
Group Plc Share Option Plan for Directors and Consultants 2007 that
are cancelled or forfeited, or terminate or lapse for any reason
before being exercised.
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The following limitations shall
apply to grants of Options:
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4.3.1.
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No Participant
shall be granted, in any fiscal year of the Company, Options to
purchase more than 1,000,000 Shares (subject to adjustment as set
out in Clause 4.3.3 below).
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4.3.2.
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In connection
with his or her initial service, a Participant may be granted
Options to purchase up to an additional 1,000,000 Shares which
shall n
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