Exhibit 10.27
DATATEC SHARE OPTION SCHEME
Adopted by
DATATEC LIMITED
(Registration No. (1994/005004/06)
CONFORMED COPY REFLECTING AMENDMENTS MADE ON 29 SEPTEMBER 2003 AND
ALL PREVIOUS AMENDMENTS TO THE DATATEC SHARE OPTION SCHEME
1. INTERPRETATION AND PRELIMINARY
The heading of the clauses in this agreement are for the purpose of
convenience and reference only and shall not be used in the interpretation
of nor modify nor amplify the terms of this agreement nor any clause
hereof. Unless a contrary intention clearly appears -
1.1. words importing -
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural person include created entities (corporate or
unincorporate) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them
hereunder and cognate expressions shall have corresponding meanings,
namely -
1.2.1. "the auditors" means the auditors for the time being of the
company;
1.2.2. "beneficiary" means any employee to whom an option has been
granted but if the trustees contemplated in clause 1.2.9 are
granted an option, means the employee concerned;
1.2.3. "capitalisation issue" means the issue of share on a
capitalisation of the company's profits and/or reserves
(including the share premium account and the capital
redemption reserve fund);
1.2.4. "the company" means DATATEC LIMITED;
1.2.5. "the directors" means the board of directors for the time
being of the company or any committee thereof to whom the
powers of the directors in respect of the scheme are
delegated in terms of the company's articles of association;
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1.2.6. "employee" means anyone employed by the company (including
non-executive directors) or any of its subsidiaries or any
partnership (of which the company or any subsidiary is a
partner having an equity interest of not less than 20%
(twenty per centum)), or any associated company in which the
company or any of its subsidiaries has an equity interest of
not less than 20% (twenty per centum);
1.2.7. "retrenched employee" means an employee whose employment has
been terminated by the company by reason of its being surplus
to the requirements of the company;
1.2.8. "the JSE" means the Johannesburg Stock Exchange;
1.2.9. "offeree" means an employee and/or the trustees nomine
officio of a trust established primarily for the benefit of
the employee and/or one or more of his immediate relations,
namely the employee's spouse or his descendants (including an
adopted descendant) nominated in terms of the provisions of
the scheme to be granted and option;
1.2.10. "option" means an option to subscribe for shares in the
company granted in terms of this scheme;
1.2.11. "the option date" means the date upon which an option is
granted to an offeree;
1.2.12. "ordinary share" or "share" means an ordinary share in the
capital of the company;
1.2.13. "option price" means the 30 (thirty) day average of the
closing market price of the ordinary share immediately
preceding the option date but always subject to a minimum
price of 200c;
1.2.14. "retired employee" means any former employee who is a
beneficiary on his retirement and has retired at or after the
normal retirement age (as laid down in the company's pension
fund regulations from time to time), or, with the approval of
the directors, prior to the normal retirement age;
1.2.15. "rights issue" means the offer of any securities of the
company or of any other body corporate to all ordinary
shareholders of the company pro rata to their holdings;
1.2.16. "the scheme" means the scheme as set out in this deed, as
amended from time to time in terms hereof;
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1.2.17. "scheme share" means any share in respect of which an option
has been granted but not yet exercised;
1.2.18. "the trust" means the DATATEC SHARE TRUST;
1.3. any reference to an enactment is to that enactment as at the date of
signature hereof and as amended or re-enacted from time to time;
1.4. if any provision in a definition is a substantive provision
conferring rights or imposing obligations on any party,
notwithstanding that it is only in the definition clause, effect
shall be given to it as if it were a substantive provision in the
body of the agreement;
1.5. when any number of days is prescribed in this agreement, same shall
be reckoned exclusively of the first and inclusively of the last day
unless the last day falls on a Saturday, Sunday or public holiday, in
which case the last day shall be the next succeeding day which is not
a Saturday, Sunday or public holiday;
1.6. where figures are referred to in numerals and in words, if there is
any conflict between the two, the words shall prevail;
1.7. expressions defined in this agreement shall bear the same meanings in
schedules or annexures to this agreement which do not themselves
contain their own definitions;
1.8. reference to day/s, month/s or year/s shall be construed as Gregorian
calendar day/s, month/s or year/s.
2. PURPOSE
The scheme is intended as an incentive to employees to promote the
continued growth of the company by giving them an opportunity to acquire
shares therein.
3. ORDINARY SHARES AVAILABLE FOR THE SCHEME
3.1. The aggregate number of ordinary shares reserved for the scheme is
15% (fifteen per centum) of the issued share capital from time to
time.
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3.2. The aggregate number of fully paid ordinary shares in respect of
which any employee may hold options from time to time in terms of the
scheme shall not exceed such amount taking into account any shares
offered to the employee under the trust which have not at that time
been paid for in full, as may be determined from time to time by the
directors of the company, (and, if the JSE's requirements so provide,
determined in conjunction with the JSE,) provided that no such
maximum imposed shall be less, in respect of any offeree, than the
number of shares in respect of which such offeree has already been
granted options prior to that date. The present maximum for any one
employee is shares aggregating at the time of the granting of such
options not more than 1.5% (one decimal five per centum) of the
issued share capital of the company.. The limit shall be adjusted in
such manner as the auditors certify is fair and reasonable in their
opinion as a result of -
3.2.1. the sub-division or consolidation of ordinary shares; or
3.2.2. the issue of additional ordinary shares whether by way of a
capitalisation of the company's profits and/or reserves
(including the share premium account and the capital
redemption reserve fund), or a rights issue.
4. ELIGIBILITY
4.1. Employees shall be eligible to participate in the scheme only if and
to the extent that options are granted to them and/or the trusts
contemplated in clause 1.2.9.
4.2. The directors in their sole discretion may from time to time by
resolution resolve to which of the employees options shall be granted
in terms of the scheme. Every such resolution shall specify the name
of the employee, the number of shares in respect of which the option
is being granted and the option date.
4.3. Such option shall be granted by delivery to the option holder
concerned of an option in the form approved by the directors from
time to time.
5. THE OPTIONS
5.1. An option shall be granted at the option price.
5.2. An option shall be governed by the provisions of this deed, to which
the option holder shall strictly adhere.
5.3. The options are irrevocably granted for a period of 10 (ten) years
after the option date, but subject to any relevant terms of this
deed.
5.4. An option is personal to and only capable of being exercised by the
relevant offeree (or the executor of the deceased estate of the
employee concerned).
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5.5. No beneficiary may sell or otherwise dispose of, transfer, cede or
pledge or otherwise encumber any options granted to him in terms of
the scheme, provided that such beneficiary may at any time transfer
all or any of the options granted to him in terms of the scheme to
trustees of a family trust of the beneficiary. For the purposes of
this clause 5.5:
5.5.1 a family trust shall mean a trust whether arising under a
settlement, declaration of trust, testamentary disposition or
on an intestacy which does not permit any of the property of
such family trust or the income therefrom to be applied
otherwise than for the benefit of the beneficiary and/or such
beneficiary's spouse (or widow or widower) and/or the
beneficiary's children;
5.5.2 the options transferred pursuant to clause 5.5.1 shall not be
capable of being exercised by any person other than the
trustees of the family trust;
5.5.3 where options are held by the trustees of a family trust
pursuant to the provisions of this clause 5.5:
5.5.3.1 such options shall on any change of such trustees of
the family trust be transferred to the new trustees
of such family trust;
5.5.3.2 if and whenever such beneficiary under the scheme's
rules ceases to be a trustee and/or beneficiary of
such family trust, the trustees of the family trust
shall be deemed immediately to have transferred the
options to the original beneficiary under the
scheme's rules; and
5.5.3.3 if and whenever such beneficiary under the scheme's
rules ceases to be a trustee and/or beneficiary of
such family trust, and the trustees of the family
trust have exercised the options held by such
trustees of such family trust pursuant to the
provisions of clause 5.5.2, the trustees of the
family trust shall be deemed immediately to have
transferred any shares they acquired as a result of
such exercise of the options to the original
beneficiary under the scheme's rules.
5.6. Each option may only be exercised in respect of 100 (one hundred)
shares or multiples thereof at a time, or in full.
5.7. If a beneficiary wishes to exercise an option, he may do so only in
writing within the period stipulated and shall sign such written
exercise provided that after his death, such written exercise may be
signed by the executor of his estate. Such written exercise of the
option must be delivered to the secretary of the company, must be
accompanied by the option price for the shares in respect of which
that exercise relates or by an instruction to sell the shares or
sufficient thereof to meet the beneficiary's obligations arising from
the exercise in terms of the scheme, and if it is not signed by the
beneficiary personally, must be accompanied
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by proof, to the satisfaction of the directors, of the authority of
the signatory. The option shall only be regarded as exercised on the
day the shares relating to the option are listed on the JSE, provided
that if the beneficiary instructs the company to dispose of any of
the shares on his behalf on the business day immediately following
their listing at ruling market prices on that date, the exercise date
in respect of those shares sold shall be deemed to be the date of
disposal by the company. If the beneficiary concerned fails to
deliver the option price in respect of the shares in respect of which
an option has been exercised to the secretary of the company,
simultaneously with the written exercise of the option, such exercise
shall be of no effect, unless the company has been instructed to
dispose of such shares on behalf of the employee.
5.8. An option may only be exercised whether or not the beneficiary has
retired after the expiration of 1 (one) year from the option date in
question in respect of 25% (twenty five per centum) of the shares
subject to the option, after the expiration of 2 (two) years in
respect of a further 25% (twenty five per centum) of such shares
subject to the option, after the expiration of 3 (three) years in
respect of a further 25% (twenty five per centum) of the shares
subject to the option and after the expiration of 4 (four) years from
the option date in respect of the remaining shares subject to the
option (it being recorded that such percentages shall be carried
forward on a cumulative basis), other than in the following
circumstances -
5.8.1. the directors shall be entitled if in their opinion special
circumstances exist and in consequence of which they consider
it reasonable to permit the exercise of the option (in whole
or in part) prior to the date on which it could be otherwise
exercised, to permit such exercise;
5.8.2. if so determined by the directors, at any time after an offer
to all shareholders of the company (other than the offeror)
to acquire their shares, or a scheme of arrangement between
the company and its shareholders (or any class of them), or
any other scheme or arrangement including the sale,
re-organisation or reconstruction of the company's share
capital by virtue of which control of the company would pass,
becomes unconditional (whether in its original or revised
form), or is sanctioned by court, as the case may be;
5.8.3. a beneficiary shall be entitled to exercise any option in
full subject to it not having lapsed -
5.8.3.1. within 12 (twelve) months after becoming a
retrenched employee subject to clause 5.8.3.3. If
the beneficiary does not exercise the option
within such period, it shall lapse;
5.8.3.2. within 12 (twelve) months after the death of the
employee concerned even if, had the employee
concerned been alive, he would not have been
entitled to exercise the option (in
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whole or in part). If the estate does not exercise
the option within such 12 (twelve) month period,
it shall lapse;
5.8.3.3. in the case of a retrenched employee his right to
exercise shall be limited to those options capable
of exercise in terms of clause 5.8 together with
those options becoming so capable within 6 (six)
months of the date of written notice of
retrenchment.
5.9. An option shall lapse -
5.9.1. as contemplated in clause 5.8; or
5.9.2. if an employee ceases to be an employee, other than on his
death or on his becoming a retired employee or on his
becoming a retrenched employee or for any other reason that
the directors may in their absolute discretion consider valid
but excluding a cessation on grounds which justify summary
dismissal at common law;
5.9.3. if the interest of a beneficiary in an option is attached
under any circumstances whatever and the directors pass a
resolution to the effect; or
5.9.4. if not duly exercised by the tenth anniversary of the option
date;
5.9.5. if not duly exercised by the person contemplated in clause
5.4.
5.10. The shares in respect of which an option is exercised shall be fully
paid, rank pari passu with the existing ordinary shares and shall be
allotted and issued by the directors within 14 (fourteen) days after
the exercise of the option. The directors shall use their best
endeavours to procure that a listing is granted in respect of the
shares on the stock exchanges on which the company's shares are
listed and quoted.
5.11. For the purposes hereof, an employee shall be deemed to cease to be
employed -
5.11.1. if there are grounds which would have justified a summary
dismissal of the employee at common law and the directors
elect to rely on them, on the date upon which such grounds
arose; or otherwise
5.11.2. on the day on which notice of termination of his employment
is given.
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6. SALE OF SHARES
6.1. After a beneficiary has exercised any option and paid the option
price in respect of those scheme shares, such beneficiary shall not
be entitled to sell any such shares without the prior written consent
of the directors, save as follows and in such event only after
notifying the directors of the company in writing, other than in the
following circumstances -
6.1.1. up to 25% (twenty five per centum) after the 1 (one) year as
from the option date;
6.1.2. up to a further 25% (twenty five per centum) after 2 (two)
years as from the option date;
6.1.3. up to a further 25% (twenty five per centum) after 3 (three)
years as from the option date;
6.1.4. up to the balance after 4 (four) years as from the option
date, it being recorded that the aforementioned provisions
shall apply on a cumulative basis, other than in the
following circumstances :-
6.1.4.1. as contemplated in clause 6.2;
6.1.4.2. if so determined by the directors, at any time
after an offer to all shareholders of the company
(other than the offeror), to acquire their share,
or a scheme of arrangement between the company and
its shareholders (or any class of them), or any
other scheme or arrangement including the sale,
re-organisation or reconstruction of the company's
share capital by virtue of which control of the
company would pass, become unconditional (whether
in its original or revised form), or is sanctioned
by court, as the case may be;
6.1.4.3. a beneficiary (or his executor) shall be entitled
to sell any shares in respect of which an option
has been duly exercised-
(a) within 12 (twelve) months after becoming a
retired employee or a retired employee or a
retrenched employee;
(b) within 12 (twelve) months after the death of
the employee concerned.
6.2.
6.2.1. Notwithstanding the provisions of clause 6.1, if a
beneficiary ceases to be an employee (within the meaning of
that term as
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defined) by reason of death, serious incapacity, serious
disability or for any other reason that the directors may
in their absolute discretion consider valid but excluding
the summary dismissal of such beneficiary on grounds which
justify summary dismissal at common law then, within 60
(sixty) days thereafter, such beneficiary or his executor,
as the case may be, shall be entitled, by written notice to
the directors, to require them to permit him to sell all or
any of the shares which were originally scheme shares but
which had since been fully paid for and which are owned by
such beneficiary at that time.
6.2.2. If a beneficiary ceases to be an employee (within the meaning
of that term as defined) by reason of the summary dismissal
of such beneficiary (or if grounds existed which would have
entitled the company to summarily dismiss the employee and
the directors elect to rely on them), then he shall not enjoy
the rights referred to in clause 6.2.1.
7. ADJUSTMENT ON REORGANISATION OF COMPANY OR SHARE CAPITAL
7.1. If the company, at any time before any option is duly exercised -
7.1.1. is put into liquidation for the purposes of reorganisation;
or
7.1.2. is a party to a scheme of arrangement affecting the structure
of its share capital; or
7.1.3. ceases to retain a nominal value for its shares; or
7.1.4. reduces its capital; or
7.1.5. splits or consolidates its shares; or
7.1.6. is a party to a reorganisation; or
7.1.7. has a capitalisation or rights issue; or
the auditors shall, if they are requested to do so by the directors,
be entitled in writing to effect such adjustments to the option price
in respect of the scheme shares as they shall consider fair and
reasonable in the circumstances, subject (where necessary) to the
sanction of the court. The auditors shall act as experts and not as
arbitrators and their decision shall be final and binding.
7.2. If the company is placed in liquidation otherwise than in terms of
clause 7.1 above, this scheme and any options granted hereunder which
have not been exercise at the date, shall ipso facto lapse from the
date of liquidation.
For the purpose hereof "date of liquidation" shall mean the date upon which any
application (whether provisional or final) for the liquidation of the company
is lodged at the relevant court.
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8. TAKE OVER OF COMPANY
8.1. If an offer is made or a scheme of arrangement proposed by virtue of
which control of the company would pass to another person or company,
then in addition to the provisions of clause 5.8.2, the directors
shall use their best endeavours to procure that the same or a similar
offer be made or scheme of arrangement proposed, as the case may be,
to all beneficiaries in respect of all scheme shares.
8.2. If control of the company passes to another person or company as a
result of a take over or reconstruction or amalgamation which makes
provision for beneficiaries to be granted options in respect of
shares to be issued by such other person or in such other company on
terms, in the opinion of the auditors (acting as experts and not as
arbitrators and whose decision shall be final and binding), not less
favourable than those on which the beneficiaries are entitled to
exercise their options (taking into account any rights issues), the
beneficiaries shall be obliged to accept options in respect of shares
in such other company on such terms in lieu of the existing options.
9. DISPUTE
Any dispute arising under this scheme shall be referred to the auditors
(acting as experts and not as arbitrators) who shall make a decision in
respect thereof and whose decision shall be final and binding on all
parties to the dispute.
10. AMENDMENTS
10.1. This deed may be amended from time to time by the directors but -
10.1.1. the terms of any option or conditions of allotment of any
scheme share may not be altered without such consent on the
part of the beneficiaries concerned (treated as a separate
class) as would be required under the company's articles of
association for a variation or cancellation of the rights
attached to the scheme shares in question;
10.1.2. if so required, the consent of the JSE shall be obtained;
10.1.3. no amendment in respect of the following matters shall
operate unless such amendment has received the approval of
the company in general meeting -
10.1.3.1. the persons who may become beneficiaries under
the scheme;
10.1.3.2. an amendment to the provisions of clauses 1.2.6,
1.2.10, 1.2.13, 5.3, 5.5, 5.7, 5.8, 5.9, 6 and 8.
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10.2. Notwithstanding the provisions of clause 10.1, if it should become
necessary or desirable by reason of the enactment of any new act or
regulation at any time after the signing of this scheme, to amend the
provisions of the scheme so as to preserve the substance of the
provisions contained herein but to amend the form so as to achieve
the objectives embodied herein in the best manner having regard to
such new legislation, the directors may amend this scheme accordingly
but without prejudice to the beneficiaries concerned.
10.3. Notwithstanding anything to the contrary herein or elsewhere
contained should it from time to time become necessary or desirable,
by reason of the company obtaining or wishing to apply for a listing
on any Stock Exchange in addition to and other than its listing upon
The Johannesburg Stock Exchange to amend the provisions of this
scheme so as to enable it to comply with the requirements of such
other Stock Exchange or to be more readily acceptable within the area
of jurisdiction of such Stock Exchange, then the directors may amend
this scheme accordingly but not so as to prejudice any beneficiaries
existing at the time of such amendment.
11. DISCLOSURE IN ANNUAL FINANCIAL STATEMENTS
The company shall disclose in its annual financial statements -
11.1. the number of shares and of debentures for the option scheme;
11.2. the number of options granted to beneficiaries which have yet to be
exercised;
11.3. the number of options exercised during such financial year;
11.4. if the company is listed on the JSE such other disclosure as may be
required in terms of the rules of the JSE from time to time.
12. ISSUE OF SHARES TO ANY PARTY
The company shall be entitled at any time to issue new shares to any party
on such terms and conditions as the directors may determine. None of the
beneficiaries (nor their representatives nor their successors-in-title)
shall have any action of whatsoever nature arising from any such issue of
shares to any party.
THUS DONE and SIGNED at _____________________ on this _________ day of
________________ 2004.
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AS WITNESSES
1.
2. ______________________
Director
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