EXHIBIT (d)(5)
IONA TECHNOLOGIES PLC
INCENTIVE STOCK OPTION AGREEMENT
IONA Technologies PLC, a public limited company organized under the laws
of Ireland (together with its subsidiaries present and future, the "Company"),
hereby grants as of _______, 2003 (the "Grant Date") to [ NAME ] (the
"Employee"), an option to purchase a maximum of [ NUMBER ] shares (the "Option
Shares") of its Ordinary Shares, E0.0025 par value ("Ordinary Shares"), at the
price of U.S.$[ XXX ] per share, on the following terms and conditions:
1. XXXXX UNDER 1997 SHARE OPTION SCHEME. This option is granted pursuant
to and is governed by the Company's 1997 Stock Option Scheme, as amended (the
"Scheme") and, unless the context otherwise requires, terms used herein shall
have the same meaning as in the Scheme. Determinations made in connection with
this option pursuant to the Scheme shall be governed by the Scheme as it exists
on the Grant Date.
2. GRANT AS INCENTIVE STOCK OPTION; OTHER OPTIONS. This option is intended
to qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). This option is in addition to any
other options heretofore or hereafter granted to the Employee by the Company,
but a duplicate original of this instrument shall not effect the grant of
another option.
3. VESTING OF OPTION IF EMPLOYMENT CONTINUES. The Employee may exercise
this option for twenty-five percent (25%) of the Option Shares at any time on
and after the Grant Date hereof and, provided the Employee has continued to be
employed by the Company after the date hereof, may exercise this option for an
additional six and one-quarter percent (6.25%) of the Option Shares at the end
of each ninety-one (91) day period hereafter. Notwithstanding the foregoing, in
accordance with and subject to the provisions of the Scheme, the Committee may,
in its discretion, accelerate the date that any installment of this option
becomes exercisable. The foregoing rights are cumulative and (subject to
Sections 4 or 5 hereof if the Employee ceases to be employed by the Company) may
be exercised on or before the date which is ten (10) years from the Grant Date.
4. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OTHER THAN FOR CAUSE. If the Employee ceases to be
employed by the Company, other than by reason of death or disability as defined
in Section 5 or termination for Cause as defined in Section 4(c), no further
installments of this option shall become exercisable, and this option shall
terminate (and may no longer be exercised) after the passage of one (1) month
from the Employee's last day of employment, but in no event later than the
scheduled expiration date. In such a case, the Employee's only rights hereunder
shall be those which are properly exercised before the termination of this
option.
(b) TERMINATION FOR CAUSE. If the employment of the Employee is terminated
for Cause (as defined in Section 4(c)), this option shall terminate upon the
Employee's receipt of written notice of such termination and shall thereafter
not be exercisable to any extent whatsoever.
(c) DEFINITION OF CAUSE. "Cause" shall mean conduct involving one or more
of the following: (i) the substantial and continuing failure of the Employee,
after notice thereof, to render services to the Company in accordance with the
terms or requirements of his or her employment; (ii) disloyalty, gross
negligence, willful misconduct, dishonesty or breach of fiduciary duty to the
Company; (iii) the commission of an act of embezzlement or fraud; (iv)
deliberate disregard of the rules or policies of the Company which results in
direct or indirect loss, damage or injury to the Company; (v) the unauthorized
use or disclosure of any trade secret or confidential information of the
Company; or (vi) the commission of an act which constitutes unfair competition
with the Company or which induces any customer or supplier to breach a contract
with the Company.
(d) NO RIGHT TO COMPENSATION. This option shall not form part of the terms
and conditions of the Optionee's employment with the Company and the Optionee
shall have no right to any compensation arising from
the loss of the Optionee's entitlements to or under this option or the Option
Shares as a result of the termination of the Optionee's employment (for any
reason whatsoever) whether such compensation is claimed by way of damages for
unfair or wrongful dismissal or other breach of contract or by way of
compensation for loss of office or otherwise howsoever.
5. DEATH; DISABILITY.
(a) DEATH. If the Employee dies while in the employ of the Company, this
option shall be exercisable in full without regard to the vesting schedule set
forth in Section 3, and this option may be exercised, to the extent fully
exercisable after such acceleration, by the Employee's estate, personal
representative or beneficiary to whom this option has been assigned pursuant to
Section 10, at any time within one (1) year after the date of death, but not
later than the scheduled expiration date.
(b) DISABILITY. If the Employee ceases to be employed by the Company by
reason of his or her disability (as defined in the Scheme), this option may be
exercised, to the extent otherwise exercisable on the date of the termination of
his or her employment, at any time within one (1) year after such termination,
but not later than the scheduled expiration date.
(c) EFFECT OF TERMINATION. At the expiration of the one (1) year period
provided in paragraphs (a) or (b) of this Section 5 or the scheduled expiration
date, whichever is the earlier, this option shall terminate (and shall no longer
be exercisable) and the only rights hereunder shall be those as to which the
option was properly exercised before such termination.
6. PARTIAL EXERCISE. This option may be exercised in part at any time and
from time to time within the above limits, except that this option may not be
exercised for a fraction of a share unless such exercise is with respect to the
final installment of Option Shares subject to this option in which case cash in
lieu of a fractional share shall be paid to permit the Employee to exercise
completely such final installment.
7. PAYMENT OF PRICE - FORM OF PAYMENT. The option price shall be paid in
U.S. Dollars, or the equivalent in Euros (E) at the exchange rate on the date of
exercise, in cash or by check.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this option, the
Optionee agrees that a purchase of shares under this option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company at
its principal executive office, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this option and the
number of Option Shares for which it is being exercised and shall be signed by
the person or persons so exercising this option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this option, shall
be registered in the name of the Employee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 5 or Section 10 hereof, by any person or persons other than the
Employee, such notice shall be accompanied by appropriate proof of the right of
such person or persons to exercise this option.
10. OPTION NOT TRANSFERABLE. This option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Employee's
lifetime only the Employee may exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Employee to exercise it.
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12. NO OBLIGATION TO CONTINUE EMPLOYMENT. Neither the Scheme, this
Agreement, nor the grant of this option imposes any obligation on the Company to
continue the Employee in employment.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Employee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Employee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the shares so exercised in accordance with
Section 9. Except as is expressly provided in the Scheme with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to such date of
exercise.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Scheme contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Scheme for adjustment with
respect to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
15. EARLY DISPOSITION. The Employee agrees to notify the Company in
writing immediately after the Employee transfers any Option Shares, if such
transfer occurs on or before the later of (a) the date two (2) years after the
date of this Agreement or (b) the date one (1) year after the date the Employee
acquired such Option Shares. The Employee also agrees to provide the Company
with any information concerning any such transfer required by the Company for
tax purposes.
16. WITHHOLDING TAXES. If the Company in its discretion determines that it
is obligated to withhold any tax in connection with the exercise of this option,
or in connection with the transfer of, or the lapse of restrictions on, any
Option Shares or other property acquired pursuant to this option, the Employee
hereby agrees that the Company may withhold from the Employee's wages or other
remuneration the appropriate amount of tax. At the discretion of the Company,
the amount required to be withheld may be withheld in cash from such wages or
other remuneration or in kind from the Option Shares or other property otherwise
deliverable to the Employee on exercise of this option. The Employee further
agrees that, if the Company does not withhold an amount from the Employee's
wages or other remuneration sufficient to satisfy the withholding obligation of
the Company, the Employee will make reimbursement on demand, in cash, for the
amount underwithheld.
17. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this Agreement the
Employee acknowledges receipt of a copy of this Agreement and a copy of the
Scheme.
18. MISCELLANEOUS.
(a) NOTICES. All notices hereunder shall be in writing and shall be
deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given
in the manner provided for herein.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between the parties relative to the subject matter
hereof, and supersedes all proposals, written or oral, and all other
communications between the parties relating to the subject matter of this
Agreement. This Agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) SEVERABILITY. The invalidity, illegality or unenforceability of
any provision of this Agreement shall in no way affect the validity,
legality or enforceability of any other provision.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Section 10 hereof.
(e) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the principles of the conflicts of
laws thereof.
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IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed as of the date first above written.
IONA TECHNOLOGIES PLC
THE IONA BUILDING
SHELBOURNE ROAD
BALLSBRIDGE
DUBLIN 4
IRELAND
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EMPLOYEE
By:
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XXXXX XXXXXX - CHIEF EXECUTIVE
OFFICER
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Print Name of Employee
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Street Address
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City State Zip Code
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