EXHIBIT 10.1
SCHEDULE
THE GALORE GROUP LIMITED
ACN 008 577 759
EXECUTIVE SHARE OPTION PLAN
TERMS AND CONDITIONS OF OPTIONS
1. DEFINITIONS
In these terms and conditions, unless the context otherwise requires:
"BOARD" means the board of directors of the Company;
"BONUS DATE" means any date after the Issue Date and before exercise or expiry
of the Outstanding Options, on which entitlements are determined for holders of
Ordinary Shares to participate in any bonus issue by way of capitalisation of
profits, reserves or share premium account;
"BUSINESS DAY" means a day on which banks are open for business in Sydney
excluding a Saturday, Sunday or public holiday;
"COMPANY" means The Galore Group Limited;
"DEAL WITH" means to sell, transfer, assign, alienate or otherwise dispose of or
deal with the legal or beneficial interest in the Options or any rights or
interests relating to the Options, or to mortgage, charge, pledge, encumber,
create a lien, right of set-off or create or permit to arise any other security
or other rights or interests over or in respect of the Options;
"EXERCISE NOTICE" means a notice substantially in the form set out in the
schedule;
"EXERCISE PERIOD" means the period commencing on 1 February 1999 or the Issue
Date, whichever is the later and ending on the Expiry Date, provided that if:
(a) the Optionholder is an individual and the Optionholder ceases to be
employed by or related to the Company or any Related Body Corporate due to
death, permanent disability or ill health; or
(b) the Optionholder is an entity and the individual who controls that entity
ceases to be employed by or related to the Company or any Related Body
Corporate due to death, permanent disability or ill health,
then the period will commence on the date of the cessation of employment and end
on the Expiry Date;
"EXERCISE PRICE" means $0.46 per Option;
"EXPIRY DATE" means the fifth anniversary of the Issue Date;
"ISSUE DATE" means the date upon which the Options are issued to the
Optionholder as set out in the Option Certificate;
"OPTIONS" means the Options over Ordinary Shares referred to in the Option
Certificate;
"OPTION CERTIFICATE" means the certificate issued by the Company to the
Optionholder setting out the number of Options issued to the Optionholder and
the Issue Date;
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"OPTIONHOLDER" means the person registered in the Company's option register as
the holder of the Options;
"ORDINARY SHARES" means fully paid ordinary shares of 20 cents each in the
capital of the Company or the ordinary shares into which fully paid ordinary
shares of 20 cents each are consolidated or subdivided or otherwise adjusted
from time to time;
"OUTSTANDING OPTIONS" means Options which remain unexercised from time to time;
"RELATED BODY CORPORATE" has the same meaning as defined in the Corporations
Law;
"STOCK EXCHANGE" means any recognised stock exchange or securities market in the
United States or Australia;
"SUBSIDIARY" means a subsidiary of the Company as determined in accordance with
the Corporations Law;
"TAKEOVER BID" has the same meaning as defined in the Corporations Law;
"$" means Australian dollars.
2. INTERPRETATION
In these terms and conditions, unless the context otherwise requires:
(a) headings and underlinings are for convenience only and do not affect the
interpretation of these terms and conditions;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate;
(e) a reference to any thing includes a part of that thing;
(f) a reference to a clause or schedule is a reference to a clause of, and a
schedule to, these terms and conditions;
(g) a reference to any statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws
varying, consolidating or replacing them, and a reference to a statute
includes all regulations, proclamations, ordinances and by-laws issued
under that statute;
(h) a reference to a document includes an amendment or supplement to, or
replacement or novation of, that document;
(i) a reference to a party to a document includes that party's successors and
permitted assigns;
(j) where the day on or by which any thing is to be done is not a Business Day,
that thing must be done on or by the following Business Day.
3. OPTION ENTITLEMENT
Subject to the provisions of these terms and conditions, upon grant and exercise
each Option entitles the Optionholder to subscribe for one Ordinary Share at the
Exercise Price.
4. DURATION OF OPTIONS
(a) The Options expire at 5:00 pm on the Expiry Date.
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(b) Options not exercised on or before the Expiry Date will automatically
lapse.
5. EXERCISE OF OPTIONS
(a) Subject to clause 6, an Optionholder may exercise its Outstanding Options
from time to time, in whole or in part, by lodging with the Company at its
registered office during the Exercise Period:
(1) the Option Certificate;
(2) a duly completed and signed Exercise Notice; and
(3) the subscription monies for the relevant Ordinary Shares, being the
number of Options specified in the Exercise Notice multiplied by the
Exercise Price.
(b) If while any Options remain unexercised:
(1) an offer is made to ordinary shareholders of the Company to purchase
or otherwise acquire their shares pursuant to a Takeover Bid; and
(2) as a result of or pursuant to the Takeover Bid the offeror acquires a
relevant interest (as defined in the Corporations Law) in not less
than 30% of the issued ordinary shares in the Company,
then the Company may, at the sole discretion of the directors, give written
notice of the facts to the Optionholder within 14 days of the offeror
acquiring the relevant interest and the Options may then be exercised in
whole or in part within the period of 120 days (or such other period of
between 30 days and 120 days as the directors of the Company may determine
in their absolute discretion) from the date of that notice.
(c) Upon allotment to the Optionholder of the Ordinary Shares specified in the
Exercise Notice, the Option Certificate lodged with the Company by the
Optionholder pursuant to clause 5(a) must:
(1) if all the Outstanding Options have been exercised, be cancelled by
the Company;
(2) if some only of the Outstanding Options have been exercised, be
appropriately endorsed by the Company and then returned to the
Optionholder.
6. EXERCISE PERIOD
Subject to clauses 5(b) and (c), the Options are exercisable at any time during
the Exercise Period provided that at any one time the Optionholder must exercise
at least 20% of the Options.
7. TIME FOR ALLOTMENT AND ISSUE
The Company must allot to the Optionholder on the date upon which the
Optionholder validly exercises Options, and issue to the Optionholder within 10
Business Days of that date, the number of Ordinary Shares which corresponds with
the number of Options being exercised as specified in the Exercise Notice.
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8. ADJUSTMENTS UPON RECONSTRUCTION
Subject to clause 12(a), if at any time or times prior to the exercise by the
Optionholder of any Outstanding Options the Company implements a reconstruction
of its share capital, then the Outstanding Options shall be treated in the
following manner:
(a) in the event of a consolidation of the share capital of the Company, the
number of Outstanding Options shall be consolidated in the same ratio as
the Ordinary Share capital and the Exercise Price shall be amended in
inverse proportion to that ratio;
(b) in the event of a subdivision of the share capital of the Company, the
number of Outstanding Options shall be sub-divided in the same ratio as the
Ordinary Share capital and the Exercise Price shall be amended in inverse
proportion to that ratio;
(c) in the event of a reduction of par value by return of share capital, the
number of Outstanding Options shall remain the same and the Exercise Price
shall be reduced by the same amount as the reduction of the par value of
each Ordinary Share;
(d) in the event of a reduction of par value of each Ordinary Share by a
cancellation of share capital that is either lost or not represented by
available assets, the number of Outstanding Options and the Exercise Price
shall remain unaltered;
(e) in the event of a pro-rata cancellation of shares, the number of
Outstanding Options shall be reduced in the same ratio as the ordinary
share capital and the Exercise Price shall be amended in inverse proportion
to that ratio;
(f) in the event of any other reconstruction of that issued capital of the
Company, the number of Outstanding Options or the Exercise Price or both
shall be reconstructed (as appropriate) in a manner which will not result
in any benefits being conferred on the Optionholder which are not conferred
on shareholders; and
(g) in each case all adjustments shall be rounded down to the nearest whole
number and fractions shall be disregarded,
provided that the Exercise Price must not be reduced below the par value of an
Ordinary Share.
9. BONUS ISSUES
Subject to clause 12(a), on each Bonus Date each Option will immediately confer
on the Optionholder the right:
(a) to receive upon exercise of those Outstanding Options, not only an
allotment of one Ordinary Share for each of the Outstanding Options
exercised but also an allotment of such additional shares and/or other
securities as it would have received had it exercised those Outstanding
Options immediately before that Bonus Date; and
(b) to have profits, reserves or share premium account, as the case may be,
applied in paying up in full those additional shares.
10. RIGHTS ISSUE
(a) If prior to the date of exercise of any of the Options any offer or
invitation is made by the Company for subscription for cash with respect to
shares, options or other securities of the Company or of any other Company
to the holders for the time being of the Ordinary Shares of the Company,
the Company must give the Optionholder notice of its intention to make such
offer or invitation at least 12 Business Days prior to the commencement of
the offer or invitation.
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(b) If at the date of the notice the Options are exercisable in accordance with
their terms, then if the Optionholder exercises the Options prior to the
books closing date, the Optionholder is entitled to participate in the
rights issue to the extent of the resulting Ordinary Shares.
(c) If, at the date of the notice, the Options are not exercisable in
accordance with their terms, the Optionholder is not entitled to
participate in the rights issue.
11. PARI PASSU RANKING
(a) Subject to the provisions of clause 11(b), any Ordinary Shares allotted
pursuant to any exercise of the Options shall rank pari passu in all
respects with other Ordinary Shares of the Company on issue at the date of
such allotment.
(b) Where any Ordinary Shares are allotted during a period in respect of which
a dividend is declared, the holder of such shares shall only be entitled to
receive a dividend where the Option pursuant to which such shares were
issued was exercised on or before the relevant dividend entitlement date.
12. CALCULATIONS
(a) If the Board in its absolute discretion determines that an adjustment
prescribed by clause 8 or 9 (or the fact that no adjustment is prescribed
in respect of a particular reconstruction) would not be fair and equitable
to all of the Optionholders and the holders of Ordinary Shares having
regard to the circumstances of the particular capital reconstruction or
bonus issue and the capital structure of the Company at that time, then the
Board may substitute another adjustment, provided that the Board reasonably
considers that the substitute adjustment is fair and equitable.
(b) Any calculations or adjustments which are required to be made for the
purposes of these Options will be made by the auditors of the Company for
the time being and will, in the absence of manifest error be final and
conclusive and binding on the Optionholder.
(c) The Company must notify each Optionholder of any adjustments made to the
Exercise Price or the number of Outstanding Options within 10 Business Days
of the date of the adjustment.
13. REPLACEMENT OF CERTIFICATES
If any Option Certificate is lost, stolen, mutilated, defaced or destroyed it
may be replaced at the registered office of the Company upon payment by the
claimant of the expenses incurred in connection with that replacement and on
such terms as to evidence, indemnity and security as the Company may reasonably
require. Mutilated or defaced Option Certificates must be surrendered before
replacements will be issued.
14. NOTICES
Any notice regarding the Options will be sent to the registered address of the
Optionholder as recorded in the register of options maintained by the Company.
15. GOVERNING LAW
The Options are governed by and construed in accordance with the laws of New
South Wales.
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16. DUTIES AND TAXES
The Company is not responsible for any duties or taxes which may become payable
in connection with the issue and allotment of Ordinary Shares pursuant to an
exercise of the Options or any other dealing with the Options.
17. ASSIGNMENT OF OPTIONS
(a) Subject to clause 17(c), the Options will automatically lapse if the
Optionholder Deals with any of the Options without the prior written
consent of the Company.
(b) If the Optionholder is an entity, the Options will automatically lapse if
that entity ceases to be controlled by the employee of the Company who
controlled that entity at the date of granting of the Options, without the
prior written consent of the Company.
(c) If the Options are initially granted to a director of the Company or of a
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Related Body Corporate or an entity controlled by a director of the Company
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or of a Related Body Corporate, then that director or entity may transfer
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all or any of the Options to any other employee of the Company or of a
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Related Body Corporate or entity controlled by an employee of the Company
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or of a Related Body Corporate, provided that upon any such transfer
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occurring this clause 17(c) will cease to apply as an exception to clause
17(a).
18. CESSATION OF EMPLOYMENT
(a) Notwithstanding anything to the contrary herein contained, the Options
shall automatically lapse 30 days after:
(1) if the Optionholder is an individual, the Optionholder ceases, for any
reason, to be employed by or related to the Company or any Related
Body Corporate; or
(2) if the Optionholder is an entity, the individual who controls that
entity ceases for any reason to be employed by or related to the
Company or any Related Body Corporate,
PROVIDED HOWEVER THAT the directors of the Company may in their sole
discretion and irrespective of whether or not the 30 day period will have
passed do all or any of the following:
(1) extend the 30 day period to such date as the directors may determine
being a date not later than the Expiry Date;
(2) bring forward the Exercise Date of any or all of the Outstanding
Options to such date as the directors may determine,
to the intent that such number of those Options as determined by the
directors shall be deemed not to have lapsed and shall be capable of
exercise by the Optionholder or his legal representative, as the case may
be, within a time period stipulated by the directors.
(b) For the purposes of this clause, any Optionholder or individual "related"
to the Company or any Related Body Corporate refers to the person's
relationship with the Company or body corporate as a licensee, franchisee
or such other position as the directors consider gives rise to a person
being related to the Company for the purposes of this clause.
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SCHEDULE
NOTICE OF EXERCISE OF OPTION
To: The Galore Group Limited (the "Company")
I
of
being the registered holder of the options specified in the attached Option
Certificate hereby give notice of the exercise of my options to subscribe for
Ordinary Shares in the capital of the Company and enclose subscription
monies of $ .
I authorise you to register me as the holder of the shares to be allotted to me
and agree to be bound by the Memorandum and Articles of Association of the
Company.
DATED the day of 199 .
THIS NOTICE OF EXERCISE OF OPTION, WITH THE APPROPRIATE REMITTANCE, SHOULD BE
LODGED AT THE COMPANY'S REGISTERED OFFICE.
THE GALORE GROUP LIMITED
(ACN 008 577 759)
327 Chisholm Road, Auburn, New South Wales
EMPLOYEE SHARE OPTION PLAN
OPTION CERTIFICATE
EXPIRY DATE [ ]
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Number of Name and Address Certificate Issue Date
Options Number
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This is to certify that the person named above is the registered holder of the
number of Options specified on this certificate (and not yet exercised) to apply
for and be issued the same number of fully paid ordinary shares in THE GALORE
GROUP LIMITED on the terms and conditions attached to this certificate, and
subject to the Memorandum and Articles of Association of the Company.
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For Office Use Only
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No. of Date of
Options Exercise
Exercised
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ANY OPTIONS NOT EXERCISED BY THE EXPIRY DATE ( ) WILL LAPSE.
THE COMMON SEAL
of the Company was affixed
to this document by authority
of the Board:
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Secretary Director
NOTE: This certificate must be surrendered on exercise of the whole or any part
of the Options, for endorsement or cancellation, as the case may be.