Exhibit 10.33
INVU INC.
EXECUTIVE STOCK INCENTIVE
SHARE OPTION AGREEMENT
THIS AGREEMENT IS MADE the _____ day of ______ 20__
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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("the
Company");
2. INVU Services Limited (Registration No. 3319922) a company incorporated
under the laws of England and having its registered office at ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("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.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION AND CONSTRUCTION
1.1 Definitions
In this Agreement except where the context otherwise requires the
following expressions shall have the following meanings:
"Act" the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"Agreement" this Share Option Agreement made between the Company,
the Employer and the Option-holder;
"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;
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"Board" the board of directors of the Company or a duly
appointed committee of the board;
"Control" the meaning given to it by section 840 of the Act;
"Date of Grant" the date on which this Option is granted;
"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 as determined by the Board;
"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;
"Secondary NICs" Secondary Class 1 National Insurance Contributions;
"Shares" shares of Common Stock in the capital of Company; and
"Subsidiary" a company within the meaning given to it by section
736 of the Companies ▇▇▇ ▇▇▇▇ and under the Control
of the Company.
1.2 Construction
1.2.1 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;
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(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.
1.2.3 The headings of this Agreement are for reference purposes only and
shall not affect the meaning or construction of the Agreement.
1.2.4 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.
1.2.5 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 ▇▇▇ ▇▇▇▇ shall not apply.
1.3 This Agreement and any Option granted under it shall be governed by and
construed in accordance with English law.
1.4 The Interpretation Act 1978 as modified or re-enacted from time to time
shall apply to this Agreement.
2. GRANT OF SHARE OPTION
2.1 The Company hereby grants to the Option-holder an Option to acquire
Shares in the Company.
2.2 This Option is granted on the date and year first above written.
2.3 The numbers of Shares that are subject to this Option are _____ Shares
which will be fully paid up (when issued).
2.4 The Market Value of each Share under this Option on the date and year
first above written is U.S.$____ (______).
2.5 The Exercise Price per Share shall be US $0.50.
2.6 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.
3. EXERCISE OF OPTION
3.1 This Option shall vest and be exercisable in whole or in part,
according to the following schedule:
(a) 25% of the shares subject to this Option shall vest twelve
months after the Date of Grant; and
(b) the balance of the shares subject to this Option shall vest at
the annual rate of 25% on the second, third and fourth
anniversary of the Date of Grant respectively.
3.2 Notwithstanding any other clause, this Option shall, to the extent that
it remains unexercised at the tenth anniversary of the Date of Grant,
lapse and shall cease to be exercisable.
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4. NON-ASSIGNABILITY OF OPTION
4.1 The Option-holder is prohibited from transferring any of his rights
under this Agreement.
4.2 In the event of the Option-holder's death, this Option may
notwithstanding Clause 3.1 be exercised in full no later than one year
after the date of death.
4.3 The terms of this Agreement shall be binding upon the Personal
Representatives, heirs, and successors of the Option-holder.
5. CESSATION OF EMPLOYMENT
The rights and obligations of the Option-holder under this Agreement
shall not be affected by the loss or termination of his office or
employment with the Company.
6. CHANGE OF CONTROL
6.1 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 except where Clause 9
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. On the expiration of this period this
Option shall lapse and cease to be exercisable.
6.2 If any such offer is made as is mentioned in Clause 6.1 or the Board
becomes aware that any such offer has been made, the Board may, except
where Clause 9 applies, give notice to the Option-holder inviting him
to exercise this Option in respect of all Shares which have 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.
6.3 In the event that the acquiring company refuses to assume this Option
as provided in Clause 9.1, the Shares subject to this Option shall at
the discretion of the Board and notwithstanding Clause 3.1 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.
7. COMPANY LIQUIDATION
7.1 If an effective resolution is passed for the voluntary winding-up of
the Company, the Option-holder may exercise his Option within the
period of 40 days after the adoption of the resolution by the
shareholders, which exercise may be conditional on the consummation of
such liquidation, and at the end of that period the Option shall,
subject to Clause 9, lapse.
7.2 Where the Option-holder exercises his Option in accordance with Clause
7.1, 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.
7.3 Subject to Clauses 7.1 and 9, this Option, insofar as not already
exercised, shall automatically lapse in the event of an effective
resolution being adopted by the shareholders and the consummation of
such liquidation by the Company.
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8 DEMERGER
8.1 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) 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.
9. REPLACEMENT OPTION
9.1 Subject to the conditions in Clause 9.2, where another company ("the
acquiring company") obtains control of the Company as is mentioned in
Clause 6.1, the Option-holder may within 6 months of the change of
control and with the agreement of the acquiring company release his
rights under this Option ("the Old Option") in consideration of the
grant to him of an Option ("the New Option") which is equivalent but
relate to shares in the acquiring company.
9.2 The conditions referred to in Clause 9.1 are as follows:-
(a) The total Market Value of the Shares subject to the Old Option
immediately before its release must be equal to the total
market value (as so determined) after the New Option is
granted
(ii) The aggregate exercise price payable by the Option-holder upon
the exercise in full of his New Option must be equal to the
aggregate exercise price which would have been payable by him
had he exercised in full his Old Option in respect of the
total number of Shares subject to the Old Option at the time
of the release.
9.3 If the Option-holder does not wish to release his rights under this
Option in consideration of the grant to him of a New Option, he shall
within 10 days of the date of the invitation to release his rights
under this Option, give notice of such refusal ("the Refusal Notice")
to the Company. The Board in its sole discretion may, within 10 days of
the receipt of the Refusal Notice give a written notice ("the
Cancellation Notice") to the Option-holder, cancelling all or any
portion of the Option that remains un-exercised, effective on the
latter of:
(a) the period within which the Option-holder could have accepted
the invitation of the acquiring company to accept the New
Option, or
(b) the period ending 10 days from the date of the Cancellation
Notice ("the Acceptance Periods").
Upon receipt of the Cancellation Notice, the Option-holder may exercise
this Option at any time or from time to time within the Acceptance
Periods. This Option shall lapse and cease to be exercisable at the end
of the Acceptance Periods.
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10. CHANGES TO THE CLASS OR RIGHTS OF SHARES
If notice is duly given of a shareholders' meeting at which a
resolution will be proposed where, in the opinion of the Auditors, the
class of shares for the time being constituting Shares will be
materially altered; or 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, be exercisable (but so that any
exercise under this Clause shall be conditional upon the resolution
being passed) at any time thereafter until such resolution is duly
passed or defeated or the shareholders' meeting concluded or adjourned
indefinitely, whichever shall occur first. If such a resolution is
passed an Option shall, to the extent unexercised, thereupon lapse.
11. PROCEDURE ON EXERCISE
11.1 Where this Option is exercisable, the Option-holder may exercise it in
whole or in part.
11.2 The Option-holder shall exercise this 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.
11.3 An Option shall be deemed to have been exercised on the date on which
the Notice of Exercise, payment and documents are received at the
registered office of the Company or other office as specified by the
Board.
11.4 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.
12. LOSS OF OFFICE
The grant of an Option subject to these Clauses is a matter entirely
separate from, and shall not affect the Option-holder's pension rights
and terms of his office or 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.
13. VARIATION OF CAPITAL
13.1 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 Clause 13.2 the Board's decision shall be final and
binding on the Option-holder.
13.2 No adjustment shall be made pursuant to Clause 13.1 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.
13.3 If any adjustment is made pursuant to this Clause 13, the Company shall
notify the Option-holder of the adjustment as soon as practicable after
its decision.
14. 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.
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15. OPTION-HOLDERS' TAX INDEMNITY AND RECOVERY OF SECONDARY NICS
15.1 The Option-holder shall indemnify the Employer against any Option Tax
Liability.
15.2 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.
15.3 In order to meet the Option-holder's obligations under Clause 14 and
15.1, the Employer may also take any or all the following actions:
(a) accept a payment from the Option-holder;
(b) withhold some of the Option-holder's stock option gains; and
(c) dispose of the Option-holder's shares sufficient to meet the
liabilities;
16. OPTION HOLDER
16.1 The Option-holder agrees that this Option and the transactions
contemplated hereunder does not constitute an express or implied
promise of continued employment with the Group.
16.2 The Option-holder acknowledges receipt of a copy of this Agreement
including Appendix A.
16.3 The Option-holder hereby accepts this Option subject to all of the
terms and provisions thereof.
16.4 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.
16.5 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.
16.6 The Option-holder also agrees to notify the Company upon any change in
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 Company Signed by and on behalf of the Employer
__________________________________
Option-holder
________________________________
in the presence of (witness)
Name ____________________________________
Address ____________________________________
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_____________________________________
_____________________________________
_____________________________________
APPENDIX A
INVU INC. EXECUTIVE STOCK 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 in the Company at the Exercise Price stated in clause 2.5
of the Agreement dated [...] day of.............. 20___.
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 : .....................................
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