Exhibit 99.5
THIS OPTION AGREEMENT is made on January 31, 2000
BETWEEN
1. PARAGON SOFTWARE (HOLDINGS) LIMITED whose registered office is at
Xx-Xxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxxx XX00 0XX (the "Company"); and
Xxxxxxx Xxxxxx of 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xx Xxxxx Xxxx, XX 00000
("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 44,197,222 ordinary shares of l0p each, of which 10,000,000
have been issued, 1,441,650 "A" preferred shares of l0p each, all of
which have been issued, 1,633,980 "B" preferred shares of l0p each,
all of which have been issued, and 2,727,148 "C" preferred shares of
l0p each, all of which have been issued. The "A", "B" and "C"
preferred shares may be converted into ordinary shares as set out in
Article 2.6 of the Articles of Association of the Company.
NOW IT IS HEREBY AGREED as follows:
2. 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" 80,000 Shares subject to variation
pursuant to clause 6.
1.1.7 "Shares" ordinary 10p shares of the Company.
1.1.8 "Subscription Price" l0p per Share subject to variation
pursuant to clause 6.
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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
In consideration of the sum of (pound)l (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.
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
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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 Option Shares after Start Date 2001;
3.4.2 thereafter, on the first day of each following month, the number
of options that may be exercised shall be increased by 1/48 of
the total number of options. This will continue until the Start
Date 2004 at which time all options will be exercisable.
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.
3.7 The Option shall lapse:
3.7.1 as to 66% of the Option Shares if the Employee becomes entitled
to exercise the Option in part pursuant to sub-paragraph (i) of
Clause 5.1.2 unless such options are assumed by an acquirer.
3.7.2 as to 33% of the Option Shares if the Employee becomes entitled
to exercise the Option in part pursuant to sub-paragraph (ii) of
Clause 5.1.2 unless such options are assumed by an acquirer.
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 Price 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 if it is a Group Company)
in sufficient funds (the amount of which shall be determined by the
Company)) to meet any obligation of the Company (or such employer
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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 London 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 London Stock
Exchange the Company shall make application to the Council of The
London 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 on the basis set out below 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:
(i) as to 34% only of the Option Shares if the Employee has been
employed by the Company for less than six months on such date;
(ii) as to 67% only of the Option Shares if the Employee has been
employed by the Company for at least six months but less than
eighteen months on such date; and
(iii) as to 100% of the Option Shares if the Employee has been
employed by the Company for at least eighteen months on such
date.
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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 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.
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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 be
effective upon receipt.
EXECUTED AS A DEED by ) /s/ Xxxxx Xxxxxx
PARAGON SOFTWARE (HOLDINGS) )
LIMITED in the presence of: ) /s/ X.X. Xxxxx
Director
Director/Secretary
EXECUTED A DEED by the said ) /s/ A.M.L.
Xxxxxxx Xxxxxx )
in the presence of: ) /s/ Xxxxxx X. Xxxxxxxx
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