Exhibit 99.46
THIS OPTION AGREEMENT is made on 20th December 1999
BETWEEN
1. PARAGON SOFTWARE (HOLDINGS) LIMITED whose registered office is at Xx-Xxx
Xxxxxx Xxxxxxxxx Xxxx Xxxxxxx XX00 0XX (the "Company"); and
2. XXXXX XXXXXX XXXXX of 0 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx
XX00 0XX ("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 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, 1,633,980 "B" preferred shares of 10p each, all of which have been
issued, and 2,727,148 "C" preferred shares of 10p 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:
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" 2,000 Shares subject to variation
pursuant to clause 6.
1.1.7 "Shares" ordinary 10p shares of the Company.
1.1.8 "Subscription Price" 10p per Share subject to variation
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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
In consideration 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.
3.2 The right to exercise the Option shall terminate forthwith upon the
Employee being adjudicated bankrupt.
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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 Option Shares after 9th December, 2000;
3.4.2 as to a further 25% of the Option Shares after 9th December, 2001;
3.4.3 as to a further 25% of the Option Shares after 9th December, 2002;
3.4.4 as to the balance of 25% of the Option Shares after 9th December,
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.
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
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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 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 finds 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
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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.
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.
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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 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/ S.D. Xxxxx
XXXXX XXXXXX XXXXX )
in the presence of:- ) /s/ X.X. Xxxxx
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