EXHIBIT 10.6
(Group B)
INVU INC. ENTERPRISE MANAGEMENT INCENTIVE
SHARE OPTION AGREEMENT
THIS AGREEMENT IS MADE the 14th day of September, 2001
BETWEEN
1. INVU Inc. a company incorporated under the laws of the State of
Colorado, United States of America and having its United Kingdom office
at Xxxxxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxx Xxxxxxxxx XX0 0XX ("the
Company");
2. INVU Services Limited (Registration No. 3319922) a company incorporated
under the laws of England and having its registered office at Xxxxxxxxx
Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxx Xxxxxxxxx XX0 0XX ("the Employer");
and
3. .................................................("the Option-holder").
WHEREAS:
(A) This Agreement sets out the terms on which the Board grants an Option
to the Option-holder to acquire shares of Common Stock in the Company.
(B) Shares acquired on the exercise of this Option are subject to the
Articles of Incorporation of the Company.
(C) The terms and conditions of this Option are intended to satisfy the
requirements of Schedule 14 of Finance Xxx 0000.
(D) The Company is carrying on a Qualifying Trade.
(E) The Option-holder does not have a material interest within the meaning
of paragraph 31 of Schedule 14.
NOW IT IS HEREBY AGREED as follows:
1. AMALGAMATION OF THE SCHEDULE
The rules contained in the Schedule shall, except where they are
excluded or modified by this Agreement, apply to this Agreement, and in
addition to Appendix A, shall constitute the terms of this Agreement.
2. INTERPRETATION AND CONSTRUCTION
Definitions
2.1 In this Agreement except where the context otherwise requires the
following expressions shall have the following meanings:
"Act" the Income and Corporation Taxes Xxx 0000;
"Agreement" this Share Option Agreement made between the
Company, the Employer and the Option-holder,
including the rules contained in the
Schedule;
"Applicable Laws" the requirements applicable to Stock Options
under U.S. state corporate laws, U.S.
federal and state securities laws, the
Internal Revenue Code of 1986 as amended,
any stock exchange or quotation system on
which Shares are listed or quoted and the
applicable laws of any foreign country or
jurisdiction where Options are, or will be
granted;
"Auditors" the auditors for the time being of the
Company or, such other auditors as the Board
may appoint for the exclusive purposes of
this Agreement;
"Board" the board of directors of the Company or a
duly appointed committee of the board;
"Committed Time" the meaning given to it by paragraph 29 of
Schedule 14;
"Control" the meaning given to it by section 840 of
the Act;
"Date of Grant" the date on which an Option is granted;
"Employee" any employee or director of a member of the
Group whose Committed Time to the duties of
his employment is at least 25 hours per week
(excluding meal breaks) or; if less, 75 % of
his working time;
"Employer" INVU Services Limited registered in England
with Number 3319922;
"Exercise Period" in relation to this Option, such period
commencing from the third anniversary of the
Date of Grant to the tenth anniversary of
the Date of Grant;
"Exercise Price" the price at which the Option-holder may
acquire a Share on the exercise of his
Option as determined by the Board;
"Group" the Company and its Subsidiaries and "member
of the Group" shall be construed
accordingly;
"Market Value" the market value determined in accordance
with paragraph 66 of Schedule 14;
"NICs" means National Insurance contributions;
"Option" a subsisting right granted pursuant to this
Agreement to acquire Shares;
"Option Gain" a gain realised upon the exercise,
assignment or release of this Option, being
the amount that is chargeable to income tax
under section 135 of the Act;
"Option-holder" the holder of an Option or, where the
context admits or requires, his legal
personal representatives;
"Option Tax Liability" any liability of the Company or Employer to
account to the Inland Revenue for any amount
of, or representing, income tax or NICs on
any Option Gain;
"Personal Representatives" the legal personal representatives of the
deceased Option-holder (being either the
executors of his will to whom a valid grant
of probate has been made or, if he dies
intestate, the duly appointed
administrator(s) of his estate) who have
produced to the Company evidence of their
appointment as such;
"Qualifying Option" the same meaning as in paragraph 1 of
Schedule 14;
"Qualifying Trade" the same meaning as in paragraph 18 of
Schedule 14;
"Schedule" the schedule to this Agreement;
"Schedule 14" Schedule 14 of the Finance Xxx 0000;
"Secondary NICs" Secondary Class 1 National Insurance
Contributions;
"Shares" shares of Common Stock in the Company
complying with the conditions of paragraph
38 of Schedule 14;
"Subsidiary" a company within the meaning given to it by
section 736 of the Companies Xxx 0000 and
under the Control of the Company;
"Working Time" the same meaning as in paragraph 29(6) of
Schedule 14.
2.2 Construction
2.2.1 Where the context so admits, any reference in this Agreement:-
(a) to the singular number shall be construed as if it referred
also to the plural number and vice versa;
(b) to the masculine gender shall be construed as though it
referred also to the feminine gender;
(c) to a statute or statutory provision shall be construed as if
it referred also to that statute or statutory provision as for
the time being amended or re-enacted;
(d) to the Act or to any provision of the Act shall be construed
as if it referred also to the act or statutory provision
repealed by and corresponding to the Act; and
(e) to Clauses are to clauses of this Agreement.
(f) to Rules are to rules of the Schedule.
2.2.2 The headings of this Agreement are for reference purposes only and
shall not affect the meaning or construction of the Agreement.
2.2.3 If any question, dispute or disagreement occurs pertaining to the
interpretation of this Agreement, the decision of the Board shall be
final and binding upon all parties except as regarding any matter
required to be determined by the Auditors.
2.2.4 In any matter in which they are required to act, the Auditors shall be
deemed to be acting as experts and not as arbitrators and the
Arbitration Xxx 0000 shall not apply.
2.3 This Agreement and any Option granted under it shall be governed by and
construed in accordance with English law.
2.4 The Interpretation Act 1978 as modified or re-enacted from time to time
shall apply to this Agreement.
3. GRANT OF SHARE OPTION
3.1 The Company hereby grants to the Option-holder an Option to acquire
Shares in the Company in accordance with the provisions of Schedule 14
of Finance Xxx 0000.
3.2 This Option is granted on the date and year first above written.
3.3 The numbers of Shares that are subject to this Option
are....................Shares which will be fully paid up (when
issued).
3.4 The Market Value of each Share under this Option on the date and year
first above written is U.S.$00.19 (nineteen cents).
3.5 The Exercise Price per Share shall be U.S. $00.50 (fifty cents).
3.6 The total monetary value of this Option shall be determined by the
exchange rate of the United States Dollar to the United Kingdom
Sterling as published in "The Times" newspaper on the date and year
first above written.
4. EXERCISE OF OPTION
4.1 Subject to Clauses 4.2 and 5, this Option shall be exercisable in
accordance with the terms and conditions set out in the Schedule.
4.2 This Option may be exercisable at any time before the third anniversary
of the Date of Grant if at the date of termination of employment with
the Group the Option-holder would have been in employment with the
Group for a minimum period of 5 years.
5. PERFORMANCE TARGETS
5.1 The Shares subject to this Option shall not vest and be exercisable
unless the following performance targets are achieved:
(a) The Group achieves a breakeven point where it generates enough
revenue to cover its fixed and variable costs before net
interest payable, depreciation and amortisation for the year
ending 31 January 2002 as determined by the Auditors.
(b) The Group achieves a net profit of 5% of sales in each of the
succeeding two years ending 31 January 2004.
5.2 Net profit for purposes of this Clause 5 means profit after deductions
of Directors' remuneration, but before deductions for net interest
payable, depreciation, amortisation, Directors' bonuses and corporation
tax; and shall be computed in accordance with Schedule 4 of the
Companies Xxx 0000 as determined by the Auditors.
5.3 The basis of preparing the accounts and the accounting policies adopted
by the Group shall be applied consistently within the same accounts as
from one financial year to the next.
5.4 Notwithstanding any other Clause, all shares subject to this Option
shall vest to the extent that they remain unvested on the sixth
anniversary of the Date of Grant.
6. ADJUSTMENT OF PERFORMANCE TARGET
The Board may in appropriate circumstances amend the performance target
and impose a different performance target on the same terms and
conditions set out in Rules 4.3 and 4.4 of the Schedule.
7. NON-ASSIGNABILITY OF OPTION
7.1 The Option-holder is prohibited from transferring any of his rights
under this Agreement.
7.2 Subject to Clause 4.2, in the event of the Option-holder ceasing to be
employed by the Group by reason of his death or he dies before the
expiry of the Exercise Period, the Option may be exercised no later
than one year after the date of death.
7.3 The terms of this Agreement shall be binding upon the Personal
Representatives, heirs, and successors of the Option-holder.
8. SECONDARY CLASS 1 NATIONAL INSURANCE LIABILITY
The Option-holder hereby agrees with the Company and undertakes to the
Employer to bear the whole of any Secondary NICs that may arise in
respect of any Option Gain if this Option ceases to be a Qualifying
Option for any reason whatsoever.
9. OPTION-HOLDERS' TAX INDEMNITY AND RECOVERY OF SECONDARY NICS
9.1 The Option-holder shall indemnify the Employer against any Option Tax
Liability.
9.2 The Company may refuse to allot and issue any Shares under this
Agreement unless and until the Option-holder has paid to the Employer
any such sum as is, in the opinion of the Employer, sufficient to
indemnify the Employer in full against any Option Tax Liability or the
Option-holder has made such other arrangement as, in the opinion of the
Employer will ensure that the total Option Tax Liability will be
recovered from the Option-holder within such period as the Employer may
determine.
9.3 In order to meet the Option-holder's obligations under Clause 8 and
9.1, the Employer may also take any or all the actions contained in
Rule 13.6 of the Schedule.
10. OPTION HOLDER
10.1 The Option-holder agrees that the vesting of Shares pursuant to Clause
4 is subject to continuing employment with the Group.
10.2 The Option-holder agrees that this Agreement, the transactions
contemplated hereunder does not constitute an express or implied
promise of continued employment with the Group.
10.3 The Option-holder confirms to the Group that his Committed Time amounts
to at least 25 hours a week or, if less, 75% of his Working Time.
10.4 The Option-holder acknowledges receipt of a copy of this Agreement
including the Schedule and Appendix A. He further states that he is
familiar with the terms and provisions contained therein.
10.5 The Option-holder hereby accepts this Option subject to all of the
terms and provisions contained in the Agreement thereof.
10.6 The Option-holder declares that he has reviewed this Agreement in its
entirety, has had an opportunity to obtain advice of Counsel prior to
executing this Agreement and fully understands all the provisions of
this Agreement including the Schedule.
10.7 The Option-holder further agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board upon any questions
arising under this Agreement.
10.8 The Option-holder also agrees to notify the Company upon any change of
his residential address.
IN WITNESS OF WHICH this document has been duly executed as a deed and has been
duly delivered on the day and year first above written
--------------------------------- ------------------------------------
Signed by and on behalf of the Signed by and on behalf of the
Company Employer
----------------------------------
Option-holder
--------------------------------
in the presence of (witness)
Name ____________________________________
Address ____________________________________
____________________________________
____________________________________
SCHEDULE
INVU INC.
ENTERPRISE MANAGEMENT INCENTIVE
RULES OF THE AGREEMENT
CONTENTS
1. INTERPRETATION AND CONSTRUCTION
2. STATUS OF THE SCHEDULE
3. INDIVIDUAL LIMITS
4 GRANT OF AN OPTION
5 RESTRICTIONS UPON THE EXERCISE OF AN OPTION
6. EXERCISE AND LAPSE OF OPTIONS
7. COMPANY REORGANISATION
8. REPLACEMENT OPTIONS
9. PROCEDURE ON EXERCISE
10. AVAILABILITY OF AUTHORISED CAPITAL
11. LOSS OF OFFICE
12. VARIATION OF CAPITAL
13 CESSATION OF QUALIFYING OPTION STATUS
14. GENERAL
15. AMENDMENTS AND TERMINATION
16. NOTICES
1. INTERPRETATION AND CONSTRUCTION
Clause 2 of the Agreement shall apply to this Schedule.
2. STATUS OF THE SCHEDULE
This Schedule is an appurtenance of, and subordinate to, the provisions
of the Agreement. The Agreement shall prevail in any conflict between
both documents.
3. INDIVIDUAL LIMITS
Limit on Shares under the Agreement
3.1 The value of Qualifying Options over Shares which the Board may grant
to the Option-holder on any date shall in aggregate, not exceed or
further exceed the maximum value permitted from time to time by
Schedule 14.
Excess Options
3.2 If the Option-holder is granted an Option that causes the limit imposed
by Rule 3.1 above to be exceeded then that Option shall not be a
Qualifying Option so far as it relates to the excess.
Period of Grant
3.3 Where the Option-holder has been granted Options under Rule 3.1 above,
any further Options granted to him by reason of his employment with the
Group within 3 years of the date of grant of the last qualifying option
is not a Qualifying Option.
4. GRANT OF AN OPTION
General
4.1 Subject to the Rule 3.1 above, the Board may at any time on or after
the date hereof and from time to time grant to the Option-holder an
Option over such number of Shares as it may decide.
Procedure
4.2 The Board may adopt such procedures in its sole discretion for granting
Options to the Option-holder.
Performance targets and additional conditions
4.3 The Board may in its absolute discretion impose an objective
performance target, the attainment of which shall normally be a
condition precedent to the exercise of the Option. The Board may also
impose objective conditions when granting an Option.
4.4 Where:-
(a) event(s) occur as a result of which the Board considers it
fair and reasonable to adjust the performance target or impose
a different performance target;
(b) event(s) mentioned in Rule 12 occur; and
(c) event(s) specified at the time the Option was granted occur.
the Board may make such adjustments as it may decide, including the
imposition of entirely different objective conditions to the
performance target and provided that such adjustments do not have the
effect of making the performance target more onerous than it was or
they were immediately before the circumstance in question and such
adjustment shall not be made unless the Auditors (acting as experts and
not as arbitrators) shall have confirmed in writing to the Board that,
in their opinion, they are fair and reasonable.
Non-assignability of Option
4.5 No Option nor any right thereunder shall be capable of being
transferred, assigned or charged except on the death of the
Option-holder when an Option may be exercised by his Personal
Representative in accordance with Rule 6.6.
5. RESTRICTIONS UPON THE EXERCISE OF AN OPTION
5.1 The Option granted must be exercised not later than 10 years after the
Date of Grant.
Expiry of Exercise Period
5.2 Notwithstanding any other Rule, an Option shall lapse upon the expiry
of the Exercise Period.
Lapsing of Option
5.3 Where under any of the provisions of this Rule 5, 6, and 7 an Option
lapses, that Option shall cease to be exercisable thereafter,
notwithstanding any other provision of those Rules other than as
referred to in Rule 5.4 below.
5.4 The Option-holder may release his Option in consideration of the grant
of a "New Option" in accordance with Rule 8 within the time allowed by
that Rule notwithstanding the provisions of Rule 7.
Additional conditions
5.5 Notwithstanding any other Rule, the Option-holder may not exercise his
Option unless and until the performance target has been satisfied.
5.6 Rule 5.5 shall not apply if the Option becomes exercisable in
accordance with Rule 6, Rule 7 and Rule 8.6.
6. EXERCISE AND LAPSE OF AN OPTION
General
6.1 Subject to Rules 6.2, 6.4, 6.5, 6.6, 6.7, 7 and 8.2 the Option-holder
may exercise his Option at any time or from time to time during the
Exercise Period.
Cessation of employment - general
6.2 Subject to Rules 6.4 and 6.6, if his employment with the Group
terminates for any reason whatsoever, the Option-holder may not
thereafter exercise his Option without the consent of the Board; and
his Option shall lapse on the date of the termination of his employment
unless and to the extent that the Board decides otherwise in accordance
with Rule 6.5.
6.3 A female Option-holder who has a right to return to work, pursuant to
the Employment Rights Xxx 0000, shall be deemed for the purposes of the
Rules not to have ceased to be employed by the Group until such time as
she is no longer capable of exercising a right to return to work and
not to have ceased to be employed if she exercises that right.
Cessation of employment- special circumstances
6.4 If the Option-holder ceases to be employed by the Group in the period
from the thirtieth month of the Date of Grant and the thirty sixth
month:-
(i) by reason of ill-health or injury or disability or (within the
meaning of the Employment Rights Act 1996) redundancy;
(ii) by reason of the Company by which the Option-holder is
employed ceasing to be a member of the Group;
(iii) by reason of the undertaking in which the Option-holder was
being transferred to a transferee which is not a member of the
Group; or
(iv) by reason of his wrongful dismissal by the employer or his
terminating his employment as a result of the employer's
conduct
he may, notwithstanding Rule 6.2 exercise his Option at any time or
from time to time within the period of 40 days and subject to Rule 6.6
below, at the expiry of that period his Option shall lapse.
6.5 If the Option-holder ceases to be employed by the Group for any reason
other than that mentioned in Rule 6.4, the Board may notwithstanding
Rule 6.2 permit him to exercise all or part of his Option within 40
days of the termination of his employment, and subject to Rule 5.1, at
any time, or from time to time, within such longer period as the Board
at its discretion shall determine, not being later than the tenth
anniversary of the Date of Grant of the Option. Subject to Rule 6.6 at
the expiry of that period the Option shall lapse.
Death of the Option-holder
6.6 If the Option-holder ceases to be employed in the period from the
thirtieth month of the Date of Grant and the thirty-sixth month by the
Group by reason of his death or dies before the expiry of the period
allowed or permitted by Rules 6.4, his Personal Representatives may,
notwithstanding Rule 6.2, exercise his Option at any time or from time
to time within the period of 12 months after the date of his death and
at the expiry of that period his Option shall lapse.
Transfer to another country
6.7 If the Option-holder, while continuing to hold an office or employment
with the Group is to be transferred to work in another country and the
Board is satisfied that as a result of that transfer either:-
(i) he will suffer a tax disadvantage upon exercising his
Option(s); or
(ii) he will become subject to restrictions on his ability to
exercise his Option(s) or to deal in the Shares obtained upon
exercise of his Option(s)
the Option-holder may, notwithstanding Rule 6.1, at the discretion of
the Board, exercise all or any of his Options in whole or in part in
the period commencing three months before and ending 40 days after the
date of transfer (but so that any exercise before the date of transfer
shall be conditional upon such transfer taking place). Upon the expiry
of such period, all Options to the extent unexercised, shall cease to
be exercisable under this Rule 6.7 and shall be exercisable at such
other times as provided in this Schedule.
7. COMPANY REORGANISATIONS
Change in Control
7.1 If as a result of either:
(a) a general offer to acquire the whole of the ordinary share
capital which is made on condition such that if satisfied, the
person making the offer will have Control of the Company; or
(b) a general offer to acquire all the Shares of the Company
(other than those which are already owned by him and/or any
person acting in concert with him)
the Company shall come under the Control of any person (or persons
acting in concert), the Option-holder may, notwithstanding Rule 6.2 and
except where Rule 8 applies, exercise his Option at any time and from
time to time within the period of 40 days following such change of
Control or, as the case may be, the making of such offer.
7.2 If any such offer is made as mentioned in Clause 7.1 or the Board
becomes aware that any such offer has been made, the Board may,
notwithstanding Rule 6.1 and except where Rule 8 applies give notice to
the Option-holder inviting him to exercise this Option to the extent it
has vested, conditional upon, and with effect from the date the notice
is given, and on the expiration of the stipulated period this Option
shall lapse and cease to be exercisable.
7.3 In the event that the acquiring company abstains from assuming this
Option as provided for in Rule 8, the Shares subject to this Option
shall at the discretion of the Board and notwithstanding Clauses 4 and
5 become fully vested. In this circumstance, the Board shall notify the
Option-holder in writing to exercise this Option within a period of
time, being a period of not less than seven days and not more than 40
days from the date of such notice, and on the expiration of the
stipulated period this Option shall lapse and cease to be exercisable.
Liquidation
7.3 If an effective resolution is passed by the shareholders of the Company
for the voluntary winding-up of the Company, the Option-holder may,
notwithstanding Rule 6.1, forthwith and until the expiry of the period
of 40 days after the adoption of the resolution by the shareholders
exercise his Option, which exercise may be conditional on the
consummation of such liquidation, and at the end of that period the
Option shall, subject to Rule 8, lapse.
7.4 Where the Option-holder exercises his Option in accordance with Rule
7.3, he shall be entitled to share in the assets of the Company with
existing holders of Shares in the same manner as he would have been
entitled had the Shares been registered in his name before the
resolution was passed.
7.5 Subject to Rules 7.3and 8, all Options, insofar as not already
exercised, shall automatically lapse in the event of an effective
resolution being passed or and an order being made for the winding-up
of the Company.
Demerger
7.6 If notice is given to shareholders of the Company of a proposed
demerger of the Company or of any Subsidiary the Board may give notice
to the Option-holder that this Option may then be exercised in respect
of such proportion of the Shares as the Board may specify within such
period (not exceeding 30 days) as the as the Board may specify save
that:
(a) no such notice shall be given unless the Auditors have
confirmed in writing to the Board that the interests of the
Option-holder would or might be substantially prejudiced if
before the proposed demerger has effect the Option-holder
could not exercise his Option and be registered as the holder
of the Shares; and
(b) the proportion of the Shares which is so specified by the
Board shall be the same as that specified in relation to all
other rights to acquire Shares granted at the same time as was
this Option.
8. REPLACEMENT OPTION FOLLOWING COMPANY REORGANISATION
Application
8.1 This Rule applies where a company (the "acquiring company") obtains
Control of the Company as a result of making:
(a) a general offer to acquire the whole of the issued share
capital of the Company (other than that which is already owned
by it and/or by its Holding Company and/or by the Subsidiaries
of it or of its Holding Company) made on a condition such that
if it is satisfied the acquiring company will have Control of
the Company; or
(b) a general offer to acquire all the Shares (or such Shares as
are not already owned by it and/or by its Holding Company
and/or by the Subsidiaries of it or of its Holding Company).
Release of Options
8.2 Where there is a qualifying exchange of shares (as mentioned in
paragraph 60 of Schedule 14) the Option-holder may with the agreement
of the acquiring company, within the period referred to in Rule 8.4
below release his Option (the "Old Option") in consideration of the
grant to him of an Option (the "New Option") over shares in the
acquiring company or some other company that has Control of the
acquiring company. This replacement Option is subject to the conditions
in Rule 8.3 below.
The conditions
8.3 A New Option qualifies as a replacement Option on the following
conditions:
(a) the Option is granted to the holder of the Old Option by
reason of his employment -
(i) with the acquiring company, or
(ii) if that company is a parent company, with that
company or another Group company;
(b) at the time of the release of rights under the Old Option, the
requirements of the purpose criteria in paragraph 9 of
Schedule 14 are met with relation to the New Option;
(c) at that time, the independence requirement and the trading
activities requirements are met in relation to the acquiring
company;
(d) at that time, the Option-holder is an Employee in relation to
the acquiring company;
(e) at that time, the requirements as to the terms of the Option
found in Part V of Schedule 14 are met in relation to the New
Option;
(f) the total Market Value, immediately before the release, of the
Shares which were subject to the Old Option is equal to the
total Market Value, immediately after the grant, of the shares
in respect of which the New Option is granted; and
(g) the total amount payable by the Option holder for the
acquisition of Shares in pursuance of the New Option is equal
to the total amount that would have been payable for the
acquisition of Shares in pursuance of the Old Option.
Period of release
8.4 The period referred to in Rule 8.2 is:
(a) in a case falling within Rule 8.1(a), six months beginning
with the time when the acquiring company obtains Control of
the Company and any condition subject to which the offer is
made, satisfied or waived;
(b) in a case falling within Rule 8.1(b) or (d), six months
beginning with the time when the acquiring company obtains
Control of the Company whose shares are subject to the Old
Option; and
Effect of release
8.5 Where the Option-holder is granted a New Option in consideration of the
release of his Old Option in accordance with this Rule, then:-
(i) the New Option shall be exercisable in the same manner as the
Old Option;
(ii) the New Option shall be subject to the provisions of the
Agreement as it had effect in relation to the Old Option
immediately before the release;
(iii) with effect from the release, the Rules (except Rule 4) shall
in relation to the New Option be construed as if references to
Shares were references to the shares in respect of which the
New Option is granted; and
(vi) with effect from the release, Rules 5.1 to 5.3, Rules 6 to 13
(all inclusive) and Rule 15 shall in relation to the New
Option be construed as if references to the Company (including
any such references as occur in expressions which are defined
in Clause 2 of the Agreement and used in this Schedule) were
references to the company in respect of whose shares the New
Option is granted.
Changes to the class or rights of Shares
8.6 If notice is duly given of a general meeting at which a resolution will
be proposed whereby:-
(i) the class of shares for the time being constituting Shares, in
the opinion of the Auditors, will be materially altered; or
(ii) the rights attaching to shares which for the time being
constitute Shares will be altered so that such shares will
cease to be Shares
an Option shall, notwithstanding Rule 6.2, Rules 5.1 and 5.2, be
exercisable in whole or in part (but so that any exercise under this
Rule shall be conditional upon the resolution being passed) at any time
thereafter until such resolution is duly passed or defeated or the
general meeting concluded or adjourned indefinitely, whichever shall
occur first. If such a resolution is passed an Option shall, to the
extent unexercised, thereupon lapse.
9. PROCEDURE ON EXERCISE
Partial exercise
9.1 Where an Option is exercisable, the Option-holder may exercise it in
whole or in part.
Method of exercise
9.2 The Option-holder shall exercise his Option by giving notice in writing
to the Board (a "Notice of Exercise") in the form of the draft in
Appendix A to this Agreement accompanied by payment in full at the
Exercise Price together with any required taxes and such other
documents as the Board may determine.
Time of exercise
9.3 An Option shall be deemed to have been exercised on the date on which
the Notice of Exercise, payment of the Exercise Price and any required
taxes and documents are received at the registered office of the
Company or other office as specified by the Board.
Allotment or transfer of Shares
9.4 Subject to Applicable Laws, such consents or other required action of
any competent authority under regulations or enactments for the time
being in force as may be necessary and subject to compliance with the
terms of the Option, the Board shall within 30 days of the date of
exercise either issue and allot to the Option-holder the number of
Shares specified in the Notice of Exercise or procure the transfer to
him of those Shares.
Rights of new Shares allotted
9.5 Shares issued and allotted pursuant to the Agreement shall rank equally
in all respects with Shares then in issue, save as regards any rights
attaching to Shares by reference to a record date prior to the date on
which the Shares are issued and allotted.
10. AVAILABILITY OF AUTHORISED CAPITAL
The Company shall keep available sufficient un-issued share capital to
satisfy all outstanding Options in respect of un-issued Shares.
11. LOSS OF OFFICE
The grant of this Option subject to the Agreement is a matter entirely
separate from, and shall not affect the Option-holder's pension rights
and terms of employment and, in particular (but without limitation), if
the Option-holder shall for any reason cease to be employed by the
Group or to be entitled to exercise his Option, he shall not be
entitled to any compensation by reference to the rights granted to, or
the benefits capable of being received by him under this Agreement or
for any loss or diminution in value of such rights or benefits.
12. VARIATION OF CAPITAL
General
12.1 In the event of any capitalization issue by the Company, or any offer
or invitation made by way of rights, or any consolidation, subdivision
or reduction of its share capital or any other variation of its share
capital, the Board may adjust in such manner as it may decide to be
appropriate the number and nominal amount of Shares subject to this
Option (including any Option which has been exercised but in respect of
which Shares have not been issued and allotted), the Exercise Price
and, subject to Rule 12.2 the Board's decision shall be final and
binding on the Option-holder.
Restrictions on adjustment
12.2 No adjustment shall be made pursuant to Rule 12.1 unless and until the
Auditors (acting as experts and not as arbitrators) shall have
confirmed in writing to the Board that the adjustment is, in their
opinion, fair and reasonable.
Notification of adjustment
12.3 If any adjustment is made pursuant to this Rule, the Board shall notify
the Option-holder of the adjustment as soon as practicable after its
decision.
13. CESSATION OF QUALIFYING OPTION STATUS
Disqualifying events
13.1 this Option shall cease to be a Qualifying Option on the occurrence of
the following events:-
(a) the Company ceasing to meet the trading activities requirement
of Schedule 14;
(b) the Option-holder ceasing to be an Employee by reason of not
meeting the employment requirement or the commitment to
Working Time;
(c) a conversion of any of the shares to which the Option relates
into shares of a different class except within the application
of paragraph 50 of Schedule 14;
(d) an alteration to the terms of the Option (other than an
earlier exercise) and subject to any amendment to Schedule 14
adjustment of share capital without Inland Revenue approval;
(e) the Company becomes a 51% subsidiary of another company or
group company;
(f) the Company was a qualifying company at the time the Option
was granted by reason only of preparation to carry out a
Qualifying Trade;
(g) the grant to the Option-holder of a relevant Company Share
Option Plan ("CSOP"), if immediately after it is granted the
Option-holder holds unexercised employee options in respect of
shares with a total value of more than (pound)100,000;
(h) a company reorganisation (loss of independence); and
(i) notification by the Inland Revenue that the requirements of
Schedule 14 have not been met.
Effects of disqualification
13.2 Subject to Rule 13.3 below, an occurrence of the disqualifying events
in Rule 13.1 will create an Option Tax Liability on any Option Gains.
13.3 This Option (whether an "original option" or a "replacement option")
shall remain a Qualifying Option if it is exercised within 40 days of
the disqualifying event.
Secondary NICs Liability
13.4 The Option-holder shall be financially responsible for the whole of the
Secondary NICs liability that may arise on the occurrence of the events
mentioned in Rule 13.1 above.
13.5 The Option-holder in total fulfilment of his obligation under Rule 13.4
shall reimburse the Employer for any sums it has paid in respect of
Secondary NICs due under the Social Security Contributions and Benefits
Xxx 0000.
13.6 The Board will accept reimbursement for any Secondary NICs the Employer
has paid with regard to this Option by any or all of the following
means:
(a) accept payment from the Option-holder;
(b) withhold some of the Option-holder's Option gains;
(c) dispose of the Option-holder's shares sufficient to meet the
liabilities; and
(d) deduction of sufficient funds from the proceeds of the
exercise of the Option.
13.7 The Board shall remit promptly to the Employer any sums obtained in
Rule 13.6.
14. GENERAL
Administration
14.1 Save as otherwise provided in the Rules, the Agreement shall be
administered by the Board and, in the event of any dispute as to
whether the Option-holder is or is not an Employee or as to any rights
or obligations of the Option-holder under the Agreement or as to any
question concerning the construction or effect of the Agreement (other
than a matter to be certified by the Auditors in accordance with the
Agreement), the Board shall decide the same and its decision shall be
final and binding on all persons.
Notices and circulars to shareholders
14.2 The Board shall not be obliged to provide the Option-holder with copies
of any notices, circulars or other documents sent to holders of Shares
except those which relate to events which, under Rule 7, entitle the
Option-holder to exercise his Option.
Costs and expenses
14.3 The costs of the preparation and operation of this Agreement shall be
borne by the Company.
15. AMENDMENTS AND TERMINATION
The Board may at any time and from time to time amend or add to the
Option in any respect provided that:-
(a) no amendment or addition shall be made which would affect
adversely any of the subsisting rights of the Option-holder
except with his consent in writing; and
(b) no amendment or addition to the Option shall have effect
unless and until it has been approved by the Board of Inland
Revenue pursuant to the Act.
16. NOTICES
To the Option-holder
16.1 Save as otherwise provided herein, any notice or document to be given
by the Board or the Company to the Option-holder may be given by
personal delivery or by sending it by ordinary post to his last known
address. Where a notice or document is sent by post it shall be deemed
to have been received 72 hours after it was put into the post properly
addressed and stamped. All notices and documents sent by post will be
sent at the risk of the Option-holder. Neither the Company nor any of
its Subsidiaries shall have any liability whatsoever to the
Option-holder in respect of any notice or document sent, nor shall the
Company or any of its Subsidiaries be concerned to see that the
Option-holder actually receives it.
To the Company
16.2 Save as otherwise herein provided, any notice or document given by the
Option-holder to the Company or the Board shall be delivered or sent to
the Company as its registered office (or at such other place or places
as the Board may from time to time determine and notify to the
Option-holder) and be effective upon receipt.
APPENDIX A
INVU INC. ENTERPRISE MANAGEMENT INCENTIVE
NOTICE OF EXERCISE OF OPTION
TO: The Company Secretary
INVU Inc. ("the
Company")
1. I hereby exercise my Option to acquire..............Shares of Common
Stock at the Exercise Price stated in Clause 3.5 of the Agreement dated
..................................... 2001.
2. Please allot or transfer the said shares, which are to be registered in
my name. I accept and agree that the said shares are subject to the
Agreement and the Articles of Incorporation of the Company.
3. I hereby deliver to the Company U.S.$......................... being
the aggregate Exercise Price of the total number of shares in respect
of which the Option is being exercised.
4. The said shares are being acquired as beneficial owner/personal
representative of the Option-holder and not as trustee or nominee for
any other person.
5. Please issue a share certificate to me at the address shown below. I
agree that any documents sent to me by ordinary post will be at my own
risk.
Signature: ..................................
Address: ....................................
.....................................
.....................................
.....................................
Date : ......................................
