EXHIBIT 4.14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 14th day
of April 2005 (the "Effective Date"), by and among Xxxxx X. Xxxxx (the
"Executive") and IONA Technologies, Inc., a Delaware corporation ("IONA, Inc."
or the "Company"), and its parent, IONA Technologies PLC, a public limited
company organized under the laws of Ireland ("IONA PLC").
WHEREAS, the Company desires to continue to employ Executive upon the
terms and conditions set forth in this Agreement; and
WHEREAS, the Executive desires to continue employment with the Company,
and to perform the duties assigned to him hereunder, upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities. During the Term (as defined in
Section 4), the Executive shall be employed by the Company and shall serve as
IONA PLC's Chief Executive Officer. The Executive shall have the duties,
responsibilities and authority consistent with such positions as well as those
duties and responsibilities relating to the business and/or operations of the
Group (as defined below) as may reasonably be directed from time to time by IONA
PLC's Board of Directors (the "Board of Directors") or any committee thereof. In
the performance of the Executive's duties and responsibilities hereunder, the
Executive shall at all times report to, and be subject to the direction and
control of, the Board of Directors. The Executive agrees to devote all of his
business time and efforts to the performance of his duties hereunder and shall
not engage in any other business activity, whether or not for profit, that may
conflict with the Executive's duties under this Agreement or any other agreement
between Executive and the Company, IONA PLC or any of their respective
subsidiaries and affiliates (collectively, the "Group"), including, without
limitation, the Nondisclosure Agreement (as defined in Section 6).
Notwithstanding the foregoing, during the Term, the Executive may serve on the
boards of charitable organizations, serve on the boards of the companies on
which he serves as of the Effective Date, and engage in charitable activities
and community affairs; provided, that none of these activities, either alone or
in the aggregate, conflicts or interferes with his duties or responsibilities
hereunder. The Executive will fulfill his duties and responsibilities hereunder
from and at the Company's principal corporate office, currently located in
Waltham, Massachusetts, or from any such other location as may be requested by
the Board of Directors from time to time, and shall travel as necessary to
perform such duties and responsibilities. The Executive shall be appointed to
serve on the Board of Directors until the 2005 annual general meeting of the
shareholders of IONA PLC. The Board of Directors shall recommend, to the
shareholders of IONA PLC, the election of the Executive to the Board of
Directors at the 2005 annual general meeting of the shareholders of IONA PLC.
Subject, at all times from and after the 2005 annual general meeting of the
shareholders of IONA PLC, to election by the shareholders of IONA PLC, the
Executive shall serve on the Board of Directors during the Term. If the
Executive shall be elected or appointed to other offices of any member of the
Group during the Term, he shall serve in such positions without further
compensation other than that provided for in this Agreement.
2. Compensation: Salary, Bonuses and Other Benefits. During the Term,
the Executive shall receive the following compensation and benefits from the
Company
(A) Base Salary. The Company will pay to the Executive a semi-monthly
salary of $13,333 (or $320,000 at an annualized rate) (the "Base Salary"),
which shall be payable in conformity with the Company's customary
practices for executive compensation, as such practices shall be
established or modified from time to time. The Base Salary shall be
subject to review at the end of each fiscal year and may be increased but
not decreased. Any increase
shall be determined by the Board of Directors and/or its Compensation
Committee, in its or their sole discretion, and shall take effect from the
1st April each year.
(B) Bonus. The Executive will be eligible to receive an annual
performance bonus up to $224,000 based on achievement by the Group of
performance objectives and by the Executive of individual performance
objectives for each complete fiscal year during the Term, as established
by the Board of Directors and/or its Compensation Committee, in its or
their sole discretion (each, a "Bonus"). The determination of whether and
to what extent individual and Group performance objectives have been
achieved shall be made by the Board of Directors and/or its Compensation
Committee in its or their sole discretion. If earned, a Bonus with respect
to any particular fiscal year during the Term shall be paid within thirty
days after release of the Company's unaudited financial statements for
such fiscal year but in no event later than sixty (60) days after
completion of the Company's fiscal year. The Executive shall be eligible
to receive a Bonus for a particular fiscal year so long as he is employed
by the Company on the last day of such fiscal year. If Executive's
employment is terminated prior to the last day of the fiscal year, he
shall not be eligible to receive a Bonus for that fiscal year unless his
employment is terminated by the Company without Cause (as defined in
Section 5(C) hereof).
(C) Other Benefits. The Executive shall be eligible to participate in
the Company's benefits programs to the same extent as, and subject to the
same terms, conditions and limitations applicable to, other executives of
the Company. The Company's benefit plans and policies, as may be amended,
shall govern all such benefits. The Board of Directors and/or its
Compensation Committee may cause the alteration, modification or deletion
of, or addition to, employee benefits plans at any time as the Board of
Directors and/or its Compensation Committee, in its or their sole
judgment, determines to be appropriate. If the Executive elects not to
participate in the Company's health, dental and life insurance programs,
the Company will pay the total gross sum of $4,000.00, as ordinary income,
at the anniversary dates of the Executive's employment by the Company,
subject to the adjustment for partial years of employment in which the
Executive did not participate in such programs.
(D) Vacation. The Executive shall be eligible to earn and use paid
vacation in accordance with the Company's benefits programs to the same
extent as, and subject to the same terms, conditions and limitations
applicable to, other executives of the Company. Paid vacation shall accrue
on a monthly basis in accordance with the Company's vacation policy and
shall be subject to the Company's prevailing policy regarding carry-over
of unused vacation time.
(E) Reimbursement of Business Expenses. The Company shall pay or
reimburse the Executive for all reasonable business expenses incurred or
paid by the Executive in the performance of his responsibilities
hereunder. The Executive must provide reasonable substantiation and
documentation of these expenses to the Company in order to receive
reimbursement and otherwise comply with the Company's prevailing policy
relating to expense reimbursement, as such policy may be modified from
time to time.
(F) Indemnification. Executive will be eligible for indemnification to
the full extent authorized under IONA PLC's Articles of Association and,
to the extent applicable, the Company's Certificate of Incorporation and
By-laws and will be eligible for coverage under any applicable Directors'
& Officers' liability insurance policy, subject to the terms and
conditions contained therein.
(G) Tax Withholding. All payments in this Agreement shall be subject to
all applicable foreign, federal, state and local withholding, payroll and
other taxes, and the Company may withhold from any amounts payable
hereunder in order to comply with such obligations.
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3. Stock Options. The Executive shall be eligible to receive stock
option grants from time to time as may be authorized by the Compensation
Committee of the Board of Directors, in its sole discretion.
4. Term. The period of the Executive's employment under this Agreement
is the "Term." The Term consists of the Initial Term, as defined below, and any
extensions, as described below. Subject to the earlier termination as hereafter
provided in Section 5, the Term shall commence on the Effective Date and shall
continue until the date that is three (3) years from the Effective Date (the
"Initial Term"). The Term shall automatically be extended for successive
additional one-year terms unless either the Company or the Executive notifies
the other party in writing at least six (6) months before the end of the Initial
Term or three (3) months before the end of any extension of the Term of an
intention not to allow the Term to be so extended. Notification by the Company
to the Executive of the Company's intention not to allow the Term to be extended
as set forth above shall be treated as equivalent for all purposes to a
Termination By The Company For Reasons Other Than Cause as defined by Section
5(C) hereof. Notification by the Executive to the Company of the Executive's
intention not to allow the Term to be extended as set forth above shall be
treated as equivalent for all purposes to a Termination By The Executive as
defined in Section 5(A) hereof.
5. Termination. The Executive's employment under this Agreement may be
terminated at any time subject to certain notice and severance obligations as
provided in this Section. The effective date of such termination is referred to
in this Agreement as the "Termination Date."
(A) Termination By The Executive. The Executive may terminate his
employment under this Agreement at any time by giving at least three (3)
months advance written notice to the Company; provided, that if the
Executive seeks to terminate employment during the Initial Term, he shall
give at least six (6) months' advance written notice to the Company. In
the event of a termination at the Executive's option pursuant to this
Section 5(A), the Company may, in its sole discretion and upon receipt of
written notice from Executive, elect to waive all or any portion of the
notice period and accelerate the Termination Date without obligation to
pay Executive his Base Salary and benefits during the remainder of the
notice period but without otherwise affecting the Executive's rights as
set forth herein. In the event of termination at the Executive's option,
the Executive shall be entitled to no payments, salary continuation,
severance or other benefits, except for (i) payment of Base Salary to the
extent accrued but unpaid through the Termination Date; (ii) payment of
accrued but unused vacation up to the Termination Date; and (iii) payment
of any earned but unpaid Bonus up to the end of the most recently
completed fiscal year ending before the Termination Date (collectively,
the "Accrued Obligations"), and the Executive shall resign, as of the
Termination Date, from the offices he then holds pursuant to Section 1.
(B) Termination By The Company For Cause. The Company may, immediately
and unilaterally, terminate the Executive's employment under this
Agreement for "Cause" at any time, and the Executive shall resign, as of
the Termination Date, from the offices he then holds pursuant to Section
1. A termination of Executive's employment by the Company shall
constitute a termination for "Cause" under this Section 5(B) if such
termination is for one or more of the following reasons: (i) Executive's
willful failure or refusal (except due to Disability (as hereinafter
defined)) to perform substantially his duties on behalf of the Company,
IONA PLC or any other member of the Group 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) willful
misconduct or breach of fiduciary duty by Executive which causes material
harm to the Company, IONA PLC or any other member of the Group; or (iv)
Executive's willful violation of the Nondisclosure Agreement (as defined
in Section 6), any other written agreement between the Executive and the
Company, IONA PLC or any other member of the Group, or any written policy
of the Company, IONA PLC or any other member of the Group, which
violation causes material harm to the Company, IONA PLC or any other
member of the Group.
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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 Board of Directors
(excluding Executive if he is then a Director) at a meeting of the Board
of Directors 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
of Directors) finding that Executive has, in the good faith opinion of
the Board of Directors, engaged in conduct constituting Cause and
specifying the particulars thereof in reasonable detail.
In the event of a termination of Executive employment by the
Company for Cause pursuant to this Section 5(B), the Executive shall be
entitled to no payments, salary continuation, severance or other benefits,
except for the payment of the Accrued Obligations.
(C) Termination By The Company For Reasons Other Than Cause.
The Company may unilaterally terminate the Executive's employment under
this Agreement at any time without Cause by giving one (1) month's advance
written notice to the Executive. During such one-month period, the
Executive shall be available on a full-time basis for the benefit of the
Company to, among other things, assist the Company in transitioning any
matters. The Company, at its option and in its discretion, may elect to
pay the Executive his prorated Base Salary rate for all or any portion of
one (1) month in lieu of such notice and the Executive shall resign, as of
the Termination Date, from the offices he then holds pursuant to Section
1.
In the event the Company terminates the Executive's employment
under this Section 5(C), the Executive shall be entitled to payment of the
Accrued Obligations, and the following payments and benefits; provided,
that the Executive's entitlement to the following shall be subject to his
timely execution (and the non-revocation) of a comprehensive release of
claims in a form, and of a scope, acceptable to the Company:
(i) Payment, in a lump sum, of an amount equal to the sum of
(A) 18 months of the Base Salary in effect as of the Termination Date and
(B) one hundred and fifty percent (150%) of the Bonus payable to the
Executive pursuant to Section 2(B) of this Agreement;
(ii) In the event the 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 the Executive's monthly premium payments for each such
coverage elected by the Executive for the Executive and his eligible
dependents, if applicable, until the earliest of the following dates to
occur with respect to each such elected coverage: (A) the date that is 18
months after the Termination Date; (B) the date upon which the Executive
becomes covered under a comparable group plan for such applicable
coverage; or (C) the date upon which the Executive ceases to be eligible
for COBRA continuation for such applicable coverage (the "COBRA
Ineligibility Date"); provided, that, if the COBRA Ineligibility Date
occurs first, the Company shall pay the Executive a lump sum at the rate
of $4,000 per year, subject to pro rata adjustment, for the length of the
period from the COBRA Ineligibility Date to the date that is 18 months
after the Termination Date; and
(iii) Any and all unvested stock, stock options, awards and
rights that were granted to the Executive under any stock plans prior to
the Termination Date shall immediately become vested and exercisable as of
the Termination Date to the extent that they would have become vested and
exercisable if the Executive's employment had continued to the date that
is 18 months after the Termination Date. Notwithstanding any contrary
provision of any agreement relating to then outstanding stock, stock
options, awards and rights granted to the Executive under any stock plans,
all such stock, stock options, awards and rights that become vested and
exercisable pursuant to the previous sentence may be exercised by the
Executive (or the Executive's heirs, estate, legatees, executors,
administrators, and legal representative) at any time during the period
ending on the earlier of (A) the later of (i) three (3) months after the
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Termination Date and (ii) if the Executive dies within the three-month
period after the Termination Date, the first anniversary of date of the
Executive's death, and (B) the scheduled expiration of such stock, stock
option, award or right, as the case may be.
The parties hereto expressly agree that the 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 the Executive hereunder or otherwise.
(D) Termination Due To Death Or Disability. The Executive's
employment hereunder will terminate immediately upon the Executive's death
or Disability and the Executive shall resign (or be deemed to have
resigned, as the case may be), as of the Termination Date, from the
offices he then holds pursuant to Section 1. In such event, the Executive
or his estate shall be entitled to no payments, salary continuation,
severance or other benefits, except for payment of the Accrued
Obligations. For the purposes of this Agreement, "Disability" shall mean
any physical incapacity or mental incompetence (i) as a result of which
the Executive is unable to substantially perform his essential duties and
responsibilities hereunder for an aggregate of 90 days, whether or not
consecutive, during any calendar year, and (ii) which cannot be reasonably
accommodated without undue hardship.
(E) Resignation For Good Reason. A Resignation For Good Reason
shall occur on the 31st day after receipt by the Company and IONA PLC of
the Executive's notice pursuant to subsection (ii) of this Section 5(E),
if the conditions set forth in subsections (i), (ii) and (iii) of this
Section 5(E) occur.
(i) Any of the following "Events" occurs without the
Executive's prior written consent
(A) Reduction of the Executive's Base Salary or
Bonus eligibility; or
(B) Substantial reduction in the scope or nature
of the Executive's responsibilities, duties,
authorities, positions, powers or reporting
structure or relationships, except due to
the Executive's Disability or Cause;
provided, further, that the Company may
suspend the Executive with full pay (1) due
to physical incapacity or mental
incompetence before an aggregate of 90 days
is reached or (2) during the period of an
investigation concerning whether Cause
exists; or
(C) Relocation of the Executive's primary
workplace to a location more than thirty-
five (35) miles away from Waltham,
Massachusetts; or
(D) The Board of Directors shall have failed to
recommend, to the shareholders of IONA PLC,
the election of the Executive to the Board
of Directors at (i) the 2005 annual general
meeting of the shareholders of IONA PLC and
(ii) each other general meeting of the
shareholders of IONA PLC during the Term at
which the class of directors to which the
Executive shall have been assigned stands
for election; and
(ii) Within sixty (60) days after any such Event, the
Executive provides written notice to the Company and IONA PLC describing
with reasonable specificity the Event and stating his intention to resign
from employment due to such Event; and
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(iii) The Company and/or IONA PLC do not cure or cause to
be cured such Event within thirty (30) days after receipt of Executive's
notice.
A Resignation For Good Reason shall be treated for all
purposes as equivalent to a Termination By The Company For Reasons Other
Than Cause as defined in Section 5(C) hereof, and not a Termination By The
Executive as defined in Section 5(A) hereof, and the Executive shall
resign, as of the Termination Date, from the offices he then holds
pursuant to Section 1.
(F) Public Statements. Upon termination of the Executive's
employment for any reason, the Board of Directors or the General Counsel of
IONA PLC will direct and control the issuance and content of any
announcement, release or other statement to any employees, commercial
partners, insurers, directors, shareholders and clients of the Company,
IONA PLC or any member of the Group, and the press after consultation with
Executive, as appropriate under the circumstances.
(G) Change of Control Agreement. In the event that the
Executive shall be entitled to payments and benefits as set forth in
Section 5.a. of that certain Change in Control Agreement between Executive
and the Company dated October 14, 2003 (the "Change in Control Agreement"),
the Executive shall be entitled to no payments, salary continuation,
severance or other benefits under this Agreement, except for payment of
Accrued Obligations.
6. Agreement Regarding Confidentiality, Proprietary Developments and
Noncompetition. Executive acknowledges that on October 18, 2003, he executed
that certain Agreement Regarding Confidentiality, Proprietary Developments and
Noncompetition (the "Nondisclosure Agreement"). Executive acknowledges that he
will continue to be subject to, and will continue to abide by, the terms and
obligations contained in the Nondisclosure Agreement (other than the last two
sentences of Section 1 thereof, which are amended by this Agreement and no
longer applicable) both during the Term and thereafter in accordance with the
terms contained therein, and regardless of (i) the reason for the termination of
his employment and (ii) any change in the terms or conditions of his employment,
if any, prior to such termination.
7. Consent and Waiver by Third Parties. The Executive hereby represents
and warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Executive represents that he is not bound by any
agreement or any other existing or previous business relationship, which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder. The Executive represents that he shall not use or disclose any
confidential or trade secret information of a former employer in the course of
performing his duties hereunder.
8. Governing Law. This Agreement, the employment relationship
contemplated herein and any claim arising from such relationship, whether or not
arising under this Agreement, shall be governed by and construed in accordance
with the internal laws of Massachusetts, without giving effect to the principles
of choice of law or conflicts of laws of Massachusetts. Any claims or legal
actions by one party against the other arising out of the relationship between
the parties contemplated herein (whether or not arising under this Agreement)
shall be commenced or maintained in any state or federal court located in
Massachusetts, and the Executive hereby submits to the jurisdiction and venue of
any such court.
9. Severability/Reformation. In case any one or more of the provisions
contained in this Agreement or the other agreements executed in connection with
the transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other
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agreements, but this Agreement or such other agreements, as the case may be,
shall be construed, reformed and enforced to the maximum extent permitted by
law.
10. Waivers and Modifications. This Agreement only may be modified, and
the rights, remedies and obligations contained in any provision hereof may be
waived, in accordance with this Section 10. No waiver by one party to this
Agreement of any breach by the other party hereto of 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 the parties, but only by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought. No
modification or waiver by the Company shall be effective without the consent of
the Board of Directors at the time of such modification or waiver.
11. Assignment. The Executive acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his rights or delegate any of his duties or
obligations under this Agreement except, in the event of his death, to his
estate. The rights and obligations of the Company under this Agreement may be
assigned by the Company, shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the Company.
12. Entire Agreement. This Agreement, together with the agreements
referenced herein, constitutes the entire understanding of the parties and
supersedes and cancels all agreements, representations, offers and
understandings, whether written or oral, express or implied, made prior to the
Effective Date between the Executive and the Company (including but not limited
to the offer letter dated October 14, 2003 from the Company to the Executive),
except for (i) any stock option agreements entered into by and between the
Executive and IONA PLC prior to the Effective Date (ii) the Nondisclosure
Agreement, and (iii) the Change in Control Agreement, all of which shall remain
in full force and effect in accordance with their respective terms.
13. Notices. All notices hereunder shall be in writing and shall be
delivered in person, sent via facsimile, or mailed by certified or registered
mail, return receipt requested, addressed as follows:
If to the Company, to: Attention: General Counsel
IONA Technologies, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxxxxxxxxx, Esq.
Xxxxxxx Procter LLP
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
If to Executive, at his address set forth below his signature
hereto.
Notices shall be deemed to be given when delivered in person or confirmed by
facsimile receipt, or three days after deposit in the mail as set forth above.
14. Counterparts. This Agreement may be executed in two or more
counterparts and/or via facsimile, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
15. 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
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provision hereof. The language of this Agreement shall not be construed for or
against either party hereto, but instead shall be construed as whole according
to its fair meaning.
16. Survival. This Agreement shall terminate upon the termination of
the Executive's employment with the Company for any reason; provided, however,
that the provisions of Sections 2(F), and 5 through 16 hereof (and any other
operative provisions of this Agreement which, by logical context, are necessary
to interpret and enforce this Agreement so as to give effect to the parties'
intent), all shall survive the termination of this Agreement and the Executive's
employment with the Company hereunder until all obligations pursuant to such
Sections and provisions have been fulfilled. Moreover, (i) any stock option
agreements entered into by and between the Executive and IONA PLC prior to the
Termination Date; (ii) the Nondisclosure Agreement; and (iii) the Change in
Control Agreement, all shall remain in full force and effect in accordance with
their respective terms.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written as an instrument under seal.
IONA TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
Title: CFO
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000 Xxxxxxxxx Xx.
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Street Address
Xxxxxx, XX 00000
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City State Zip Code
IONA TECHNOLOGIES PLC
By: /s/ Xxxxxx Xxxxxx
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Title: CFO
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