EXHIBIT 4.13
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the "Agreement") is made and entered
into as of March , 2003 (the "Execution Date"), by and among IONA
Technologies, Inc., a Delaware corporation ("IONA, Inc."), its parent, IONA
Technologies PLC, a public limited company organized under the laws of Ireland
(the "Company"), and _____________ ("Executive").
WHEREAS, Executive currently is an employee of IONA, Inc. and an Executive
Officer (as hereinafter defined), and has made and is expected to continue to
make significant contributions to the business, growth and financial strength of
the Company and the Group (as hereinafter defined);
WHEREAS, the Company recognizes that, as is the case for most publicly
held companies, the possibility of a Change in Control (as hereinafter defined)
exists, which may alter the nature and structure of the Company, and recognizes
that the uncertainty regarding the consequences of such an event adversely
affects the Company's ability to retain Executive as an Executive Officer and
IONA Inc.'s ability to retain Executive in its employ;
WHEREAS, the Company and IONA, Inc. desire to more closely align
Executive's interests with those of the shareholders of the Company with respect
to any Change in Control that may benefit the shareholders;
WHEREAS, the Company and IONA, Inc. desire to assure themselves of both
present and future continuity of management in the event of a Change in Control,
and desire to induce Executive to remain employed with IONA, Inc. by
establishing certain benefits for Executive applicable under certain
circumstances in the event of a Change in Control, and Executive desires to be
so induced; and
WHEREAS, the parties desire to set forth in writing the terms and
conditions of their agreement with respect to the provision of benefits for
Executive applicable under certain circumstances in the event of a Change in
Control;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations herein contained, it is agreed among the parties hereto as
follows:
1. Term. This Agreement shall continue for a term commencing on the
Execution Date and ending on the date one year thereafter ("Initial Term"), and
shall be automatically renewed from year to year thereafter for successive
one-year terms (each a "Renewal Term") unless ninety (90) days prior to the
expiration of the initial term or any renewal term, any party gives written
notice of non-renewal to the other parties; provided that any such notice
provided by the Company or IONA, Inc. any time during the period beginning on
the date that is three months prior to the date upon which a definitive
agreement for a Change in Control is publicly announced as having been executed
by the Company (the "Announcement Date") and ending on the second anniversary of
the effective date of a Change in Control, shall have no effect whatsoever, and
the Agreement shall continue in force until such time as otherwise terminated in
accordance with the terms hereof. If an effective notice of non-renewal is given
as permitted hereunder, this Agreement will expire at the conclusion of either
the initial term or the renewal term, whichever is applicable, unless terminated
earlier in accordance with Section 2 hereof. The "Term" of this Agreement shall
include the Initial Term, as well as any Renewal Term, if applicable, subject to
termination at any time prior to the expiration of the Term as provided in
Section 2 hereof; provided, however, that in the event of the first Change in
Control to occur during the Term (including after any notice of non-renewal is
given), the Term shall automatically continue through the second anniversary of
the effective date of such Change in Control.
2. At-Will Status. Notwithstanding any provision of this Agreement,
Executive will remain employed at-will, so that Executive, IONA, Inc. or any
other member of the Group by which Executive may become employed from time to
time, may terminate Executive's employment at any time, with or without notice,
for any or no reason, and this Agreement shall not create or imply any right or
duty of Executive or any member of the Group to have Executive remain in the
employ thereof for any period of time. This Agreement shall automatically
terminate on the earliest date of (a) Executive's Termination Date (as
hereinafter defined) if Executive's employment ceases for any reason other than
due to an Involuntary Termination Upon a Change in Control or a Resignation for
Good Reason Upon a Change in Control (as such terms are hereinafter defined);
provided, however, that if, immediately following such cessation of employment,
Executive becomes employed by another member of the Group, then this Agreement
shall not terminate but shall remain in effect until such time as otherwise
terminated in accordance with this Agreement; or (b) the date upon which
Executive ceases to hold an Executive Office (as hereinafter defined), if
Executive remains an employee of IONA, Inc. or any other member of the Group on
such date and if such date occurs prior to a Change in Control; or (c) the date
immediately following the two-year anniversary of the effective date of the
first Change in Control to occur during the Term; provided, that,
notwithstanding any provision in this Agreement to the contrary, if Executive's
employment ceases due to an Involuntary Termination Upon a Change in Control or
a Resignation for Good Reason Upon a Change in Control, this Agreement shall
remain in effect until all obligations of the parties hereunder have been fully
satisfied.
3. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth herein:
a. "Cause" shall mean any one or more of the following: (i)
Executive's willful failure or refusal (except due to Disability (as hereinafter
defined)) to perform substantially his/her duties on behalf of IONA, Inc. or any
other member of the Group by which he may become employed (as the case may be)
for a period of thirty (30) days after receiving written notice identifying in
reasonable detail the nature of such failure or refusal; (ii) Executive's
conviction of, or entry of a plea of guilty or nolo contendere to, a felony;
(iii) disloyalty, willful misconduct or breach of fiduciary duty by Executive
which causes material harm to any member of the Group; or (iv) Executive's
willful violation of any confidentiality, developments or non-competition
agreement which causes material harm to any member of the Group. Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the Company's Board of Directors (the "Board") (excluding
Executive if he is a Director) at a meeting of the Board called and held for
(but not necessarily exclusively for) that purpose (after reasonable notice to
Executive and an opportunity for Executive, together with counsel of his choice,
to be heard by the Board) finding that Executive has, in the good faith opinion
of the Board, engaged in conduct constituting Cause and specifying the
particulars thereof in reasonable detail.
b. "Change in Control" shall mean the occurrence of any of the
following events:
(i) The Company is merged or consolidated or reorganized
into or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than fifty percent (50%) of the
combined voting power of the then-outstanding securities of such surviving,
resulting or reorganized corporation or person immediately after such
transaction is held in the aggregate by the holders of the then-outstanding
securities entitled to vote generally in the election of directors of the
Company ("Voting Stock") immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to any other corporation or other legal person,
and as a result of such sale or transfer less than fifty percent (50%) of the
combined voting power of the then-outstanding securities of such corporation or
2
person immediately after such sale or transfer is held in the aggregate by the
holders of Voting Stock of the Company immediately prior to such sale or
transfer;
(iii) Any corporation or other legal person, pursuant to a
tender offer, exchange offer, purchase of stock (whether in a market transaction
or otherwise) or other transaction or event acquires securities representing 30%
or more of the Voting Stock of the Company, or there is a report filed on
Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each
as promulgated pursuant to the U.S. Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any "person" (as such term is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
"beneficial owner" (as such term is used in Rule 13d-3 under the Exchange Act)
of securities representing 30% or more of the Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing under
or in response to Form 6-K, 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of the Company has occurred;
or
(v) If during any period of two consecutive years,
individuals who at the beginning of any such period constitute the Board cease
for any reason to constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders, of each director
of the Company first elected during such period was approved by a vote of at
least a majority of the directors then still in office who were directors of the
Company at the beginning of any such period;
provided, however, that a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement solely because (i) the Company, (ii) an
entity in which the Company directly or indirectly beneficially owns 50% or more
of the Voting Stock, or (iii) any Company-sponsored employee stock ownership
plan or any other employee benefit plan of the Company, either files or becomes
obligated to file a report or a proxy statement under or in response to Schedule
13D, Schedule 14D-1, Form 6-K, 8-K or Schedule 14A (or any successor schedule,
form or report) under the Exchange Act, disclosing beneficial ownership by it of
shares of Voting Stock or because the Company reports that a change in control
of the Company has occurred by reason of such beneficial ownership.
c. "Company" shall mean IONA Technologies PLC, its assigns, and
its Successors.
d. "Disability" shall mean any physical or mental disability that
renders Executive unable to perform his/her essential job responsibilities for a
cumulative period of 180 days in any twelve-month period, where such disability
cannot be reasonably accommodated absent undue hardship.
e. "Executive Office" shall mean those offices of the Company
that the Board in its reasonable discretion may designate from time to time as
constituting an officer position pursuant to Section 16 of the Exchange Act;
provided, that for purposes of this Agreement, Executive Office shall be deemed
to include, without limitation, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, Chief Technology Officer, Executive Vice
President of Corporate Development and General Counsel. Any person holding an
Executive Office shall be an "Executive Officer."
f. "Group" shall mean IONA Technologies PLC, and any of its
subsidiaries, including without limitation, IONA, Inc.
g. "Involuntary Termination Upon a Change in Control" shall mean
the termination of the employment of Executive by IONA, Inc. or any other member
of the Group by which Executive may become employed (as the case may be) without
Cause at any time within the period beginning on the
3
date that is three months prior to the Announcement Date and ending on the
second anniversary of the effective date of a Change in Control. "Involuntary
Termination Upon Change in Control" shall not include any termination of
Executive's employment (a) for Cause; (b) as a result of Executive's Disability;
(c) as a result of Executive's death; or (d) by Executive for any reason.
h. "Incentive Pay Eligibility" shall mean the aggregate amount of
any cash compensation derived from any bonus, incentive, performance,
profit-sharing or similar agreement, policy, plan or arrangement of any member
of the Group by which Executive is employed that Executive is eligible to
receive based upon the attainment of 100% target or quota with respect to any
one calendar year.
i. "Resignation for Good Reason Upon a Change in Control" shall
occur on the 31st day after receipt by each of the Company and IONA, Inc. of
Executive's notice pursuant to subsection (ii) below, if the conditions set
forth in all of subsections (i), (ii) and (iii) below occur:
(i) Any of the following "Events" occur without Executive's
prior written consent during the two-year period beginning on the effective date
of a Change in Control:
(A) The substantial reduction of (1) Executive's
aggregate base salary and Incentive Pay Eligibility, or
(2) the benefits for which Executive was eligible, in
either case, in effect immediately prior to a Change in
Control, except where such reduction is due to an
across-the-board reduction applicable to all senior
executives of IONA, Inc. or any other member of the
Group by which Executive may become employed (as the
case may be);
(B) The substantial reduction in the scope or nature
of Executive's responsibilities, duties, authorities,
position, powers, or reporting structure or
relationships in effect immediately prior to a Change in
Control, except due to Executive's Disability or Cause;
(C) The permanent relocation of Executive's primary
workplace to a location more than thirty-five (35) miles
away from Executive's workplace in effect immediately
prior to a Change in Control;
(D) Failure to elect, reelect or otherwise maintain
Executive in any Executive Office that Executive held
immediately prior to a Change in Control (except due to
Executive's Disability or Cause); or
(E) Failure of any Successor to, or assignee of, the
Company or IONA, Inc. (as the case may be) to assume the
duties and obligations of the Company or IONA, Inc.,
respectively, under this Agreement pursuant to Section
12 hereof; and
(ii) Within sixty (60) days after any such Event, Executive
provides written notice to each of the Company and IONA, Inc. describing with
reasonable specificity the Event and stating his/her intention to resign from
employment due to such Event; and
(iii) The Company and/or IONA, Inc. do not cure, or cause to
be cured, such Event within thirty (30) days after receipt of Executive's
notice.
4
j. "Stock Plans" shall mean the IONA Technologies PLC 1997 Share
Option Scheme, the IONA Technologies Limited Executive Share Option Scheme, and
any other stock plans or stock option plans established and maintained by the
Company at any time during the Term and pursuant to which Executive holds any
options, stock, awards and/or purchase rights, each as may be or may have been
amended, excluding the IONA Technologies PLC 1999 Employee Stock Purchase Plan
and any other plan adopted by the Company or any member of the Group pursuant to
Section 423 of the U.S. Internal Revenue Code of 1986, as amended (the "Code").
k. "Successor" shall mean any successor to the Company or IONA, Inc.
(as the case may be) (whether direct or indirect, by Change in Control,
operation of law or otherwise), including but not limited to any successor
(whether direct or indirect, by Change in Control, operation of law or
otherwise) to, or ultimate parent entity of any successor to, the Company or
IONA, Inc. (as the case may be).
l. "Termination Date" shall mean Executive's last date of
employment with IONA, Inc. and every other member of the Group by which
Executive is employed.
4. Effect of a Change in Control. If a Change in Control occurs during
the Term, and the Company's Successor resulting from such Change in Control does
not, as of the effective date of such Change in Control, (a) adopt and assume
the Stock Plans that are in effect immediately prior to such Change in Control
or (b) substitute, on an equitable basis, such Successor's securities, having
terms and conditions no less favorable to the securityholder than the terms and
conditions of the then outstanding securities under the Stock Plans, for the
then outstanding stock, options, awards and purchase rights under the Stock
Plans, then all unvested stock, options, awards and purchase rights granted to
Executive under any of the Stock Plans prior to such Change in Control shall
immediately become fully vested and exercisable as of the effective date of a
Change in Control.
5. Effect of Involuntary Termination Upon a Change in Control or
Resignation for Good Reason Upon a Change in Control. In the event of an
Involuntary Termination Upon a Change in Control or a Resignation for Good
Reason Upon a Change in Control during the Term, Executive shall be entitled to
the following:
a. "Severance Benefits" as follows, subject to Section 6 hereof:
(i) Payment of an amount equal to two times Executive's base
salary, at the highest annualized rate in effect during the period between the
date immediately prior to the effective date of a Change in Control and the
Termination Date, payable in accordance with Section 5.a (v) below;
(ii) Payment of an amount equal to two times the highest
amount of Executive's Incentive Pay Eligibility with respect to any one calendar
year in the period beginning in the calendar year prior to that in which the
Change in Control occurs and ending in the calendar year in which Executive's
employment is terminated, payable in accordance with Section 5.a (v) below;
(iii) In the event Executive elects after the Termination Date
to continue health, vision and/or dental coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Company will pay
Executive's monthly premium payments for each such coverage elected by Executive
for Executive and his or her eligible dependents, if applicable, until the
earliest of the following dates to occur with respect to each such elected
coverage: (A) the second anniversary of the Termination Date; (B) the date upon
which Executive becomes covered under a comparable group plan for such
applicable coverage; or (C) the date upon which Executive ceases to be eligible
for COBRA continuation for such applicable coverage; provided, that, in the
event the date set forth in clause (C) of
5
this subsection 5.a (iii) occurs prior to the second anniversary of the
Termination Date due to expiration of COBRA continuation for health, dental
and/or vision coverage, and as of such expiration date, the date described in
clause (B) of this subsection 5.a (iii) has not occurred with respect to such
applicable coverage, then the Company will pay for the cost of insurance
premiums for such applicable coverage incurred by Executive for Executive and
his or her eligible dependents, if applicable, from the date each COBRA coverage
expires until the earlier to occur of the dates set forth in this subsection 5.a
(iii) (A) or (B).
(iv) Any and all unvested stock, stock options, awards and
rights that were granted to Executive under any of the Stock Plans prior to the
Termination Date shall immediately become fully vested and exercisable as of the
Termination Date or, if Executive's employment was terminated within the
three-month period prior to the Announcement Date, as of the Announcement Date
(whichever may apply, the "Vesting Date"). Notwithstanding any contrary
provision of any agreement relating to then outstanding stock, stock options,
awards and rights granted to Executive under any of the Stock Plans after the
Execution Date, all such stock, stock options, awards and rights granted after
the Execution Date may be exercised by Executive (or Executive's heirs, estate,
legatees, executors, administrators, and legal representatives) at any time
during the period ending on the earlier of (A) the later of (i) three (3) months
after the Vesting Date and (ii) if Executive dies within the three-month period
after the Vesting Date, the first anniversary of the date of Executive's death,
and (B) the scheduled expiration of such stock, stock option, award or right, as
the case may be. Executive hereby acknowledges and agrees that, as a result of
the operation of Section 4 and this subsection 5.a (iv), some or all of the
"incentive stock options" (as defined in the Code) granted to Executive under
the Stock Plans may no longer qualify as "incentive stock options" for U.S.
federal income tax purposes, and Executive hereby consents to any such
disqualification.
(v) The payments set forth in subsections 5.a (i)-(iii)
above (the "Cash Severance Benefits") shall be payable, at Executive's election,
either (x) in a lump sum payment on the Vesting Date or on any other date
designated by Executive; or (y) in equal monthly installments over the
twenty-four (24) month period following the Vesting Date; provided that the
payments described in Section 5.a (iii) hereof shall be paid on a monthly basis.
b. Executive shall also be entitled to any unpaid compensation
and benefits, and unused vacation accrued, through the Termination Date.
Executive shall also be entitled to receive reimbursement for final expenses
that Executive reasonably and necessarily incurred on behalf of the Group prior
to the Termination Date, provided that Executive submits expense reports and
supporting documentation of such expenses as required by the practice or policy
in effect at that time. Executive shall not be eligible for or entitled to any
severance payments or benefits pursuant to a severance plan, program,
arrangement, practice or policy of any member of the Group, if any, that may be
in effect as of the Termination Date.
c. The parties hereto expressly agree that provision of the
Severance Benefits to Executive in accordance with the terms of this Agreement
will be liquidated damages, and that Executive shall not be required to mitigate
the amount of any payments provided for in this Agreement by seeking other
employment or otherwise, nor shall any profits, income, earnings or other
benefits from any source whatsoever create any mitigation, offset, reduction or
any other obligation on the part of Executive hereunder or otherwise.
d. If Executive's employment is terminated at any time for any
reason that does not constitute an Involuntary Termination Upon a Change in
Control or a Resignation for Good Reason Upon a Change in Control, Executive
shall not be entitled to, and shall not receive, any Severance Benefits
described in Section 5(a) of this Agreement, but in such instance, Executive
shall be entitled to receive
6
the payments and benefits set forth in the first two sentences of Section 5(b)
hereof and shall be eligible for any severance payments or benefits pursuant and
subject to a severance plan, program, arrangement, policy, practice or agreement
of any member of the Group, if any, for which Executive was eligible in
accordance with its terms prior to, and that may be in effect as of, the
Termination Date.
6. Conditions of Severance Benefits. Executive shall receive Severance
Benefits only if Executive: (a) executes a separation agreement, which includes
a general mutual release, in a form and of a scope reasonably acceptable to the
parties hereto; (b) presents satisfactory evidence to the Company and IONA, Inc.
that Executive has returned all property, confidential information and
documentation of the Group; (c) has complied and continues to comply in all
material respects with any noncompetition, inventions and/or nondisclosure
obligations that Executive may owe to any member of the Group, whether pursuant
to an agreement or applicable law; and (d) provides a signed, written
resignation of Executive's status as an officer, including, without limitation,
an Executive Officer, and director (if applicable) of every member of the Group,
effective as of the Termination Date. In the event that Executive has breached
any obligations described in Section 6(c) hereof, then (x) the Cash Severance
Benefits shall terminate and Executive shall no longer be entitled to them; (y)
Executive shall promptly repay to IONA, Inc. any Cash Severance Benefits
previously received by Executive; and (z) all options, awards and purchase
rights held by Executive shall no longer be exercisable as of the date of
Executive's breach. Such termination and repayment of Cash Severance Benefits
and cessation of the right to exercise shall be in addition to, and not in lieu
of, any and all available legal and equitable remedies, including injunctive
relief.
7. Taxes. All payments and benefits described in this Agreement shall
be subject to any and all applicable federal, state, local and foreign
withholding, payroll, income and other taxes.
8. Certain Reduction of Payments. If (a) (i) the Severance Benefits,
(ii) the benefits set forth in Section 4, and/or (iii) any payment or benefit
received or to be received by Executive pursuant to any other plan, arrangement
or agreement (collectively, the "Total Payments") would constitute (in whole or
in part) an "excess parachute payment" within the meaning of Section 280G(b) of
the Code, and (b) Executive would retain more of the Total Payments (after the
payment of applicable tax liabilities imposed on the Total Payments) in the
event that the Cap (defined below) is imposed, then the amount of the Total
Payments shall be reduced until the aggregate "present value" (as that term is
defined in Section 280G(d)(4) of the Code using the applicable federal rate in
effect on the date of this Agreement) of the Total Payments is such that no part
of the Total Payments constitutes an "excess parachute payment" within the
meaning of Section 280G(b) of the Code (the "Cap").
9. Exclusive Remedy. Except as expressly set forth herein or otherwise
required by law, Executive shall not be entitled to any compensation, benefits,
or other payments as a result of or in connection with the termination or
resignation of Executive's employment at any time, for any reason. The payments
and benefits set forth in Section 5 hereof shall constitute liquidated damages
and shall be Executive's sole and exclusive remedy for any claims, causes of
action or demands arising under or in connection with this Agreement or its
alleged breach, the termination or resignation of Executive's employment
relationship, or the cessation of holding an Executive Office.
10. Governing Law/Forum. The parties agree that any claims arising out
of or in connection with this Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, and this
Agreement shall in all respects be interpreted, enforced and governed under the
internal and domestic laws of such State, without giving effect to the
principles of conflicts of laws thereof. In addition, each of the parties, by
its or his execution hereof, hereby irrevocably submits to the exclusive
jurisdiction of the state or federal courts of Massachusetts with respect to any
claims arising out of or in connection with this Agreement and agrees not to
commence any
7
such claims or actions other than in such courts. The prevailing party in any
action arising out of or in connection with this Agreement shall be entitled to
payment, by the other party, of the prevailing party's reasonable expenses and
attorneys' fees incurred in connection with such action.
11. Entire Agreement. This Agreement shall constitute the sole and
entire agreement among the parties with respect to the subject matter hereof,
and supersedes and cancels all prior, concurrent and/or contemporaneous
arrangements, understandings, promises, programs, policies, plans, practices,
offers, agreements and/or discussions, whether written or oral, by or among the
parties regarding the subject matter hereof, including, but not limited to,
those constituting or concerning employment agreements, change in control
benefits and/or severance benefits; provided, however, that this Agreement is
not intended to, and shall not, supersede, affect, limit, modify or terminate
any of the following, all of which shall remain in full force and effect in
accordance with their respective terms: (i) any programs, policies, plans,
arrangements or practices of the Group that do not relate to the subject matter
hereof; (ii) any written stock or stock option agreements between Executive and
the Company or any other member of the Group (except as expressly modified
hereby); (iii) any written agreements between Executive and any member of the
Group concerning noncompetition, nonsolicitation, inventions and/or
nondisclosure obligations; and (iv) any written agreements between Executive and
any member of the Group that do not relate to the subject matter hereof.
12. Successors and Assignment. Executive may not assign any rights or
delegate any duties or obligations under this Agreement. The Company and IONA,
Inc. will require their respective assigns and Successors in any consensual
transaction, expressly to assume this Agreement and to agree to perform
hereunder in the same manner and to the same extent that the Company or IONA,
Inc. (as the case may be) would be required to perform if no such succession or
assignment had taken place. Regardless of whether such an agreement is executed,
this Agreement shall inure to the benefit of, and be binding upon, IONA, Inc.
and the Company's respective Successors and assigns and Executive's heirs,
estate, legatees, executors, administrators, and legal representatives.
13. Notices. All notices required hereunder shall be in writing and
shall be delivered in person, by facsimile or by certified or registered mail
(or similar means for non-U.S. addresses), return receipt requested, and shall
be effective upon receipt if by personal delivery or facsimile or three (3)
business days after mailing if sent by certified or registered mail (or similar
means for non-U.S. addresses). All notices shall be addressed as follows or to
such other address as the parties may later provide in writing:
(a) if to the Company: at its U.S. headquarters, IONA
Technologies, Inc., 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attn: General
Counsel;
(b) if to IONA, Inc.: IONA Technologies, Inc., 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attn: General Counsel; and
(c) if to Executive: at the home address specified on the
signature page of this Agreement.
14. Severability/Reformation. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstances shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal. The language of all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against any of the parties.
8
15. Modification. This Agreement may be modified or waived only in
accordance with this Section 15. No waiver by any party of any breach by the
other or any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any other provision of this Agreement.
This Agreement and its terms may not be waived, changed, discharged or
terminated orally or by any course of dealing between or among the parties, but
only by a written instrument signed by the party against whom any waiver,
change, discharge or termination is sought. No modification or waiver by the
Company or IONA, Inc. (as the case may be) is effective without written consent
of the Chairman of the Board of the Company.
16. Survival of Obligations and Rights. Notwithstanding anything to the
contrary in this Agreement, provisions herein shall survive the termination of
Executive's employment due to an Involuntary Termination Upon a Change in
Control or a Resignation for Good Reason Upon a Change in Control or, other
expiration or termination of this Agreement, if so provided herein or if
necessary or desirable to fully accomplish the purposes of such provisions,
including the obligations and rights contained in Sections 4 through 19 hereof.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
19. Guarantee. In the event that IONA, Inc. or any other member of the
Group by which Executive may become employed (as the case may be) fails for any
reason to make any payments to which Executive becomes entitled under this
Agreement, the Company agrees to pay such unpaid amounts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
IONA Technologies, Inc.
By:
-----------------------------
Title:
--------------------------
IONA Technologies PLC
By:
-----------------------------
Title:
--------------------------
---------------------------------
Executive
Address for Notice to Executive:
--------------------------------
--------------------------------
--------------------------------
10
