exv10w2






Exhibit 10.2




SSI INVESTMENTS III LIMITED




SKILLSOFT PLC




EXPENSES REIMBURSEMENT AGREEMENT




William Fry

Solicitors

Fitzwilton House

Wilton Place

Dublin 2

www.williamfry.ie




© William Fry 2010



020533.0001.DMF/MAT



 









 




THIS
AGREEMENT is made on 11 February 2010



BETWEEN:





SSI INVESTMENTS III LIMITED




a company incorporated in Ireland with registered
number 480477 and having its registered office at
Block 3, The Harcourt Centre, Harcourt Road,
Dublin 2, Ireland




(hereinafter referred to as “SSI”)




— and —




SKILLSOFT public limited company




a public limited company incorporated in Ireland
with registered number 148294 and having its
registered office at Belfield Office Park,
Clonskeagh, Dublin 4, Ireland




(hereinafter referred to as “Skillsoft”)



RECITALS:





	A.	 	SSI intends to acquire Skillsoft on the terms set out in the Rule 2.5 Announcement and
Skillsoft intends to agree to reimburse costs and expenses incurred and to be incurred by SSI
for the purposes of, in preparation for or in connection with the Acquisition in certain
circumstances if the Acquisition does not proceed.






	B.	 	This Agreement sets out the agreement between the parties as to the reimbursement in certain
circumstances by Skillsoft of costs and expenses incurred and to be incurred by SSI for the
purposes of, in preparation for or in connection with the Acquisition.






	C.	 	Capitalised terms and some other words and expressions used in this Agreement are defined in
Clause 4.





NOW IT IS HEREBY AGREED as follows:





	1.	 	Commencement of Clause 2
	 
	 	 	Clause 2 of this Agreement shall not have effect unless the Rule 2.5 Announcement is issued
on or before 09:30 am (United States Eastern Time) on the day next following the date
hereof.




2









 






	2.	 	Reimbursement
	 
	2.1	 	Subject to, and in consideration of, SSI announcing a firm intention to make the Acquisition
in the Rule 2.5 Announcement, Skillsoft agrees to pay to SSI, if any one or more of the Events
described in Clause 2.2 occur, an amount equal to all specific, quantifiable third party
(including vouched out of pocket expenses incurred by third party advisers only) costs and
expenses incurred by SSI for the purposes of, in preparation for or in connection with the
Acquisition, including, without limitation:






	        	2.1.1	 	exploratory work carried out in contemplation of and in connection with
the Acquisition;
	 
	 	2.1.2	 	legal, financial and commercial due diligence;
	 
	 	2.1.3	 	arranging financing (with associated hedging and related expenses); and
	 
	 	2.1.4	 	engaging advisers to assist in the process;






	 	 	provided that the gross amount payable to SSI pursuant to this Agreement shall not, in any
event, exceed such sum as is equal to 1% of the total value of the entire issued share
capital (excluding, for the avoidance of doubt, any interest in such share capital of
Skillsoft (including in the form of American Depositary Shares) held by Stockbridge Fund,
L.P.) as ascribed by the terms of the Acquisition as set out in the Rule 2.5 Announcement.
The amount payable by Skillsoft to SSI under this Clause 2.1 shall not include any Value
Added Tax attributable to such third party costs to the extent that it is recoverable by
SSI.
	 
	2.2	 	The Events for the purposes of Clause 2.1 are any one or more of the following:






	        	2.2.1	 	the Board (or any one or more of the members thereof) withdraws, adversely
modifies or qualifies its recommendation to Skillsoft Shareholders to vote in favour
of the Scheme (to include any public announcement by Skillsoft of a recommendation or
intention to recommend a Competing Offer); or
	 
	 	2.2.2	 	Skillsoft wilfully takes or omits to take any action, such as failing to
post a Scheme Circular, preventing Skillsoft Shareholders from voting at any meetings
to approve the Scheme or any related resolutions, withdrawal of the Scheme,
adjourning any Court hearing or shareholders’ meeting, failing to issue the petition
to approve the Scheme, unilaterally altering the terms and conditions of the Scheme,
or failing to deliver the Court Order and minute of reduction of capital to the
Registrar of Companies (in any such case without the consent of SSI); or
	 
	 	2.2.3	 	prior to the Scheme being withdrawn by Skillsoft or lapsing in accordance
with its terms, a Competing Offer is announced (under Rule 2.4 or 2.5) and
subsequently made and that Competing Offer or a Competing Offer in which that
Competing Party is interested or participates subsequently becomes effective or
unconditional within the 18 months of such lapse or withdrawal.






	2.3	 	Any request by SSI for a Reimbursement Payment shall be:




3









 












	        	2.3.1	 	notified in writing to Skillsoft no later than 30 days following:






	 	 (a)	 	in the case of Clauses 2.2.1 and 2.2.2, to include in the
case of withdrawal of the Scheme by Skillsoft, SSI becoming aware of the
Event or;
	 
	 	 (b)	 	in the case of Clause 2.2.3, SSI becoming aware that such
Competing Offer has become effective; and






	        	2.3.2	 	accompanied and / or followed by written invoices or written documentation
supporting the request for a Reimbursement Payment; and
	 
	 	2.3.3	 	subject to satisfactory compliance with Clause 2.3.2, satisfied in full by
payment in full by Skillsoft to SSI in cleared, immediately available funds within 14
calendar days following such receipt of such invoices or documentation.






	2.4	 	Notices under this Agreement shall be served as provided in the Transaction Agreement.
	 
	2.5	 	For the avoidance of doubt:






	        	2.5.1	 	the refusal by Skillsoft to agree an extension to the date set out in
Condition 1 to the Rule 2.5 Announcement (namely 16 July 2010) shall not constitute a
withdrawal, or an adverse modification, of the Board’s recommendation of the
Acquisition; and
	 
	 	2.5.2	 	where used in this Agreement in the context of the Scheme:






	 	 (a)	 	the term “lapse” shall mean any of the Conditions
becoming incapable of satisfaction and “lapsing” shall be construed
accordingly;
	 
	 	 (b)	 	the term “withdraw” shall include (i) an application to
Court to adjourn Court proceedings on the Scheme either generally without a
return date or to a date after 16 July 2010 and (ii) an adjournment of any
shareholders’ meeting either generally without an adjourned date or to a
date after 16 July 2010 and “withdrawal” shall be construed accordingly.






	3.	 	General
	 
	3.1	 	The invalidity, illegality or unenforceability of a provision of this Agreement does not
affect or impair the continuance in force of the remainder of this Agreement.
	 
	3.2	 	This Agreement shall be construed in accordance with and governed by the laws of Ireland. The
parties submit to the exclusive jurisdiction of the Irish Courts in relation to any disputes
arising out of this Agreement.
	 
	3.3	 	This Agreement may be executed by the parties on separate counterparts, but shall not be
effective until each party has executed at least one counterpart. Each




4









 






	 	 	counterpart shall constitute an original of this Agreement, but the counterparts shall
together constitute one and the same instrument.
	 
	3.4	 	Each party hereto represents and warrants to the other that, assuming due authorisation,
execution and delivery by the other party hereto, this Agreement constitutes the valid and
binding obligations of that party.
	 
	3.5	 	Each party hereto confirms and agrees that no provision of the Transaction Agreement shall
supersede, vary or otherwise amend the provisions of this Agreement.
	 
	4.	 	Definitions
	 
	4.1	 	In this Agreement (including in the Recitals), the following expressions shall have the
following meaning:
	 
	 	 	“Acquisition”, the proposed acquisition by SSI of Skillsoft by means of the Scheme, as
described in, and on the terms and conditions of, the Rule 2.5 Announcement;
	 
	 	 	“Act”, the Irish Takeover Panel Act 1997 (as amended);
	 
	 	 	“Acting in Concert”, shall have the meaning given to that term in the Act;
	 
	 	 	“Associate”, shall have the meaning given to that term in the Rules;
	 
	 	 	“Board”, the board of directors of Skillsoft (or, where a director is considered not to be
independent for the purposes of Rule 3 or if restricted from voting on the Scheme or a
Competing Offer at a meeting of the Board pursuant to the Articles of Association of
Skillsoft, a duly constituted and authorised committee thereof consisting of all other
directors);
	 
	 	 	“Business Day”, any day, other than a Saturday, Sunday or public holiday in Ireland or the
State of New York;
	 
	 	 	“SSI’s Group” means SSI and any bodies corporate which are Holding Companies of SSI or
Subsidiaries or subsidiary undertakings, in each of SSI or of any Holding Company of SSI;
	 
	 	 	“Competing Offer”, means any one or more offers by or on behalf of a party (a “Competing
Party”) other than SSI (or an Associate of SSI or a person Acting in Concert with SSI)
which is publicly disclosed and which, if completed, would result in the Competing Party
(whether alone or with its Associates and concert parties) holding or controlling more
than 50% of:






	        	(i)	 	the voting and other equity securities of Skillsoft (whether in
Skillsoft Shares, Skillsoft ADRs or Skillsoft ADSs); or
	 
	 	(ii)	 	all or substantially all the assets of Skillsoft;






	        	“Competing Party” means a person other than SSI (or an Associate of SSI or a person Acting
in Concert with SSI) who alone or with or through others announces a Competing Offer prior
to the withdrawal or lapse of the Scheme;




5









 






	 	 	“Conditions”, the conditions to the Scheme and the Acquisition set out in Appendix I to
the Rule 2.5 Announcement, and “Condition” means any one of the Conditions;
	 
	 	 	“Holding Company”, shall have the meaning given to it in the Transaction Agreement;
	 
	 	 	“Offer Period”, shall have the meaning given to it in the Rules;
	 
	 	 	“Panel”, the Irish Takeover Panel;
	 
	 	 	“Reimbursement Payment(s)”, the payment(s) provided for in Clause 2.1;
	 
	 	 	“Rule 2.5 Announcement”, the announcement of the Acquisition to be made in the Agreed Form
pursuant to Rule 2.5 of the Rules;
	 
	 	 	“Rules”, the Irish Takeover Panel Act, 1997, Takeover Rules, 2007, as amended;
	 
	 	 	“Scheme”, the proposed scheme of arrangement under Section 201 of the Companies Act 1963
and the capital reduction under Sections 72 and 74 of the Companies Act 1963 to effect the
Acquisition, including any revision thereof;
	 
	 	 	“Skillsoft”, Skillsoft plc;
	 
	 	 	“Skillsoft ADRs”, American Depositary Receipts evidencing Skillsoft ADSs;
	 
	 	 	“Skillsoft ADSs”, American Depositary Shares each representing one Skillsoft Share and
evidenced by Skillsoft ADRs;
	 
	 	 	“Skillsoft Shareholders”, the holders of Skillsoft Shares;
	 
	 	 	“Skillsoft Shares”, the ordinary shares of €0.11 each in the capital of Skillsoft;
	 
	 	 	“Subsidiary”, shall have the meaning given to it in the Transaction Agreement;
	 
	 	 	“subsidiary undertaking”, shall have the meaning given to it in the Transaction Agreement;
and
	 
	 	 	“Transaction Agreement”, the transaction agreement dated as of the date hereof between SSI
and Skillsoft.
	 
	4.2	 	In this Agreement, the expression “offer” shall include:






	        	4.2.1	 	an offer, scheme of arrangement, contract, merger, redemption, share swap,
re-capitalisation or other transaction of any nature whatsoever made by or on behalf
of a party (other than SSI or any party Acting in Concert with SSI) which, if
completed, would result in such third party or its Associates holding more than 50%
of:






	 	 (a)	 	the voting and other equity securities of Skillsoft; or
	 
	 	 (b)	 	all or substantially all the assets of Skillsoft; and




6









 












	        	4.2.2	 	a merger or other transaction pursuant to SI 137/1987, SI 157/2008,
Council Regulation (EC) No 2157/2001 or SI 21/2007.






	4.3	 	In this Agreement:






	        	4.3.1	 	reference to the word “person” is deemed to include references to natural
persons, firms, partnerships, companies, corporations, associations, bodies
corporate, trusts and investment funds (in each case whether or not having a separate
legal personality);
	 
	 	4.3.2	 	reference to the word “writing” is deemed to include reference to
electronic communications such as fax and email.






	4.4	 	In this Agreement, references to time are to Irish times unless otherwise specified.




IN WITNESS whereof the parties have executed these presents the day and year above written.








7









 








	 	 	 
	SIGNED

on behalf of SSI INVESTMENTS III LIMITED 

by its authorised signatory
in the presence of:
	 	 
	 

	 	/s/ Michael C. Ascione
	 

	 	 
	 

	 	Authorised Signatory (Signature)
	 
	 	 
	 

	 	Michael C. Ascione
	 

	 	 
	/s/ Paul Egan
	 	Print name
	
 

Witness (Signature)

	 	 
	 
	 	 
	Paul
Egan
	 	 
	
 

Print name

	 	 
	 
	 	 
	South
Bank House, Barlow Street, Dublin 4
	 	 
	
 

Print address

	 	 
	 
	 	 
	SIGNED 

on behalf of SKILLSOFT plc 

by its authorised signatory
in the presence of:
	 	 
	 

	 	/s/ Charles E. Moran

	 

	 	 
	 

	 	Authorised Signatory (Signature)
	 
	 	 
	 

	 	Charles E. Moran
	 

	 	 
	/s/ Thomas
J. McDonald

	 	Print name
	
 

Witness (Signature)

	 	 
	 
	 	 
	Thomas
J. McDonald
	 	 
	
 

Print name

	 	 
	 
	 	 
	200
Beach Road, Unit #20, Tequesta, FL 33469
	 	 
	
 

Print address

	 	 







8