Exhibit 99.64
THIS OPTION AGREEMENT is made on 1st February 1999
BETWEEN
1. PARAGON SOFTWARE (HOLDINGS) LIMITED whose registered office is at Xx-Xxx
Xxxxxx Xxxxxxxxx Xxxx Xxxxxxx XX00 0XX ("the Company"); and
2. XXXXXXX XXXXXXXX XXXXXXX of 000X Xxxxxxxx Xxxxxx, Xxx X-000, Xxxxxxxxx,
XX 00000, XXX ("the Employee").
WHEREAS
(A) The Employee is an employee of the Company and the Company is willing to
grant an option to the Employee in respect of the Option Shares (as
defined below) on the following terms and conditions.
(B) The Company has an authorised share capital of (pound)5,000,000
comprising 46,924,370 ordinary shares of 10p each, of which 10,000,000
have been issued, 1,441,650 "A" preferred shares of 10p each, all of
which have been issued, and 1,633,980 "B" preferred shares of 10p each,
all of which have been issued. The "A" and "B" preferred shares may be
converted into ordinary shares as set out in Article 2 of the Articles
of Association of the Company.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement the following words and expressions shall (save where
the context otherwise requires) have the following meanings:
1.1.1 "Auditors" the auditors of the Company from time to
time.
1.1.2 "Board" the board of directors of the Company from
time to time.
1.1.3 "Control" the meaning given by Section 840, Income and
Corporation Taxes Xxx 0000.
1.1.4 "Group Company" any company which is a holding company or
subsidiary of the Company or a subsidiary of
a holding company of the Company.
1.1.5 "Option" the right granted to the Employee in respect
of the Option Shares by clause 2.
1.1.6 "Option Shares" 4,000 Shares subject to variation pursuant
to clause 6.
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1.1.7 "Shares" ordinary 10p shares of the Company.
1.1.8 "Subscription Price" 10p per Share subject to variation
pursuant to clause 6.
1.2 Headings are for ease of reference only and shall not affect the
construction of this Agreement.
1.3 Except in so far as the context otherwise requires:
1.3.1 words denoting the singular shall include the plural and vice
versa; and
1.3.2 the reference to any enactment shall be construed as a reference
to that enactment as from time to time amended, extended or re-
enacted.
1.4 Words defined in the Companies Xxx 0000 shall have the same meaning in
this Agreement unless the context otherwise requires.
2 Grant of Option
Inconsideration of the sum of (pound)1 (receipt of which is acknowledged
by the Company) the Company grants the Employee the right to subscribe
for the Option Shares or any of them (in amounts not less than 1,000
shares each) from time to time at the Subscription Price upon and
subject to the terms set out below.
3 Right to Exercise Option
3.1 The right to exercise the Option shall terminate forthwith upon the
Employee ceasing to be an employee of a Group Company except in the
following cases:
3.1.1 if the Employee dies the Option may be exercised by his personal
representatives within twelve months of the date of death to the
extent to which it could have been (but had not been) exercised
under clause 3.4 on such date;
3.1.2 if the Employee ceases to be an employee of a Group Company by
reason of:-
3.1.2.1 injury or disability (evidenced to the satisfaction
of the Board); or
3.1.2.2 retirement at state or contractual retirement age
including late retirement; or
3.1.2.3 termination of employment (other than proper
dismissal upon his failure to comply with the terms
of his employment) provided that the Employee has
been an employee of a Group Company for not less
than two years;
the Option may be exercised within six months of the date of the
Employee so ceasing to be such an employee to the extent to which
it could have been (but had not been) exercised under clause 3.4
on such date.
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3.2 The right to exercise the Option shall terminate forthwith upon the
Employee being adjudicated bankrupt.
3.3 The Option shall be personal to the Employee and may not be transferred,
assigned or charged.
3.4 Except where the Option is exercised pursuant to clause 5 the Option may
only be exercised as follows:
3.4.1 as to the first 25% of the total Option Shares after 30 January
2000;
3.4.2 as to a further 25% of the total Option Shares after 30 January
2001
3.4.3 as to a further 25% of the total Option Shares after 30 January
2002;
3.4.4 as to the balance of 25% of the total Option Shares after 30
January 2003.
3.5 The Option may not be exercised within six months of a previous exercise
of the Option but such period shall be reduced to three months if the
Employee shall have ceased to be an employee of a Group Company (or have
been given or have given notice of termination of his employment) but
remains entitled under the terms of this Agreement to exercise the
Option.
3.6 The Option shall lapse on the earliest of the following dates:-
3.6.1 the seventh anniversary of the date of this Agreement.
3.6.2 the date on which the Employee ceases to be an employee of a
Group Company in circumstances other than those specified in
clause 3.1.
3.6.3 the date on which a resolution is passed or an order is made for
the Company to be wound up.
3.6.4 the date on which the Employee is adjudicated bankrupt.
3.6.5 the date on which the Employee does or omits to do anything as a
result of which act or omission he ceases to be the legal and
beneficial owner of the Option.
4 Exercise of Option
4.1 The Option shall be exercisable in whole or in part by notice in writing
given by the Employee to the Company. The notice of exercise of the
Option shall be accompanied by a cheque in favour of the Company for the
aggregate of the Subscription Prices payable. However, notwithstanding
any other provision contained in this agreement, the Employee shall not
be entitled to exercise the Option until he has satisfied the Board as
to his ability (including if it so decides putting the Company (or his
employer company in the Group) in sufficient funds (the amount of which
shall be determined by the Company)) to meet any obligation of the
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Company (or such employer company) to account for income tax or other
amounts that are chargeable under the PAYE system (or other withholding
tax system in any other relevant jurisdiction) in relation to the
exercise of the Option. The Company shall use reasonable endeavours
(with the Employee's assistance if required) to agree with the Inland
Revenue (or other relevant tax authority) the amount of any such income
tax or liability in advance of any Shares being issued to the Employee
following the exercise of the Option. If any funds made available are
less than or greater than the amount needed to meet any obligation of
either such company to account for income tax or other amounts so
chargeable in relation to the exercise of the Option, a payment shall be
made forthwith by the Employee to such company, or vice versa, as
appropriate.
4.2 Within 30 days of receipt by the Company of a notice of exercise under
clause 4.1 and a cheque for the appropriate amount the Company shall
allot the Shares in respect of which the Option has been validly
exercised and shall issue a definitive certificate in respect of the
Shares allotted. Save for any rights determined by reference to a record
date on or before the date of allotment such Shares shall rank pari
passu and as one class with the other issued Shares.
4.3 In respect of all Shares issued pursuant to this Agreement at a time
when the Shares are dealt in on a recognised or designated investment
exchange (other than The Stock Exchange) the Company shall make
application for the grant of permission to deal in such Shares on the
said exchange and in respect of all Shares issued pursuant to this
Agreement at a time when the Shares are listed on The Stock Exchange the
Company shall make application to the Council of The Stock Exchange for
such Shares to be admitted to the Official List.
5 Takeovers mergers etc.
5.1 If any person obtains Control of the Company as a result of making:-
5.1.1 a general offer to acquire the whole of the issued ordinary share
capital of the Company which is made on a condition such that if
it is satisfied the person making the offer will have Control of
the Company; or
5.1.2 a general offer to acquire all the Shares;
the Option may be exercised within one month of the date on which the
person making the offer has obtained Control of the Company and any
condition subject to which the offer is made has been satisfied.
5.2 If under the Section 425 Companies Act 1985 the Court sanctions a
compromise or arrangement proposed for the purposes or in connection
with a scheme for the reconstruction of the Company or its amalgamation
with any other company or companies, the Option may be exercised within
one month of the Court sanctioning the compromise or arrangement.
5.3 If any person becomes bound or entitled to acquire shares in the Company
under the Sections 428 to 430F Companies Xxx 0000 the
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Option may be exercised at any time when that person remains so bound or
entitled.
5.4 For the purposes of clause 5.1 a person shall be deemed to have obtained
Control of the Company if it or he and others acting in concert with him
have together obtained Control of the Company.
6 Variation of share capital
6.1 In the event of any capitalisation, consolidation, sub-division or
reduction of the share capital of the Company or any rights issue or
other variation of capital (other than a fresh issue of shares) taking
place after the date of this Agreement the number of Option Shares
and/or the Subscription Price shall be varied in such manner (if at all)
as the Board shall determine and the Auditors shall confirm in writing
to be in their opinion fair and reasonable provided that no variation
shall be made which would result in the Subscription Price for a Share
being less than its par value. The Company shall notify the Employee of
any such variation.
7 Relevance of contract of employment
7.1 The grant of an Option will not form part of the Employee's entitlement
to remuneration or benefits pursuant to his contract of employment. The
rights and obligations of the Employee under the terms of his contract
of employment with the Company shall not be affected by the grant of an
Option.
7.2 The rights granted to the Employee upon the grant of an Option shall not
afford the Employee any rights or additional rights to compensation or
damages in consequence of the loss or termination of his office or
employment with the Company for any reason whatsoever.
7.3 The Employee shall not be entitled to any compensation or damages for
any loss or potential loss which he may suffer by reason of being or
becoming unable to exercise an Option in consequence of the loss or
termination of his office or employment with the Company for any reason
other than as provided for in clause 3.1.
8 General
8.1 The Company shall at all times keep available sufficient authorised and
unissued Shares to satisfy the exercise to the full extent still
possible of the Option taking account of any other obligations of the
Company to issue shares of any kind.
8.2 No variation to the terms of this Agreement shall be effective unless
agreed in writing by the parties.
8.3 Any notice to be given by the Company to the Employee may be personally
delivered or sent by, ordinary post to his last known address and where
a notice is sent by post to his last known address it shall be deemed to
have been received 48 hours after having been put into the post properly
addressed and stamped.
8.4 Any notice to be given by the Employee to the Company shall be delivered
or sent to the Company at its registered office and shall
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be effective upon receipt.
EXECUTED AS A DEED by ) /s/ Xxxxx Xxxxxx
PARAGON SOFT XXXX (HOLDINGS) )
LIMITED in the presence of: ) /s/ X. Xxxxxxx
Director
Director/Secretary
EXECUTED A DEED by the said ) /s/ Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXXX XXXXXXX )
in the presence of: ) /s/ J. Cable
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