EXHIBIT (d)(7)
IONA TECHNOLOGIES PLC
NON-QUALIFIED SHARE 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 "Optionee"), an option to purchase a maximum of [ NUMBER ] shares (the
"Option Shares") of the Company's Ordinary Shares, E0.0025 par value ("Ordinary
Shares"), at the price of U.S. $ [ PRICE ] per share, on the following terms and
conditions:
1. GRANT UNDER 1997 SHARE OPTION SCHEME. This option is granted
pursuant to and is governed by the Company's 1997 Share 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 NON-QUALIFIED OPTION; OTHER OPTIONS. This option shall be
treated for U.S. federal income tax purposes as a Non-Qualified Option (rather
than an incentive stock option). This option is in addition to any other options
heretofore or hereafter granted to the Optionee by the Company, but a duplicate
original of this instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. The Optionee
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 Optionee has
continued after the date hereof to serve the Company in the capacity of an
employee, officer, director or consultant (such service is described herein as
maintaining or being involved in a "Business Relationship with the Company"),
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 Optionee's Business
Relationship with the Company is terminated) may be exercised up to and
including the date which is ten years from the Grant Date.
4. TERMINATION OF BUSINESS RELATIONSHIP.
(a) TERMINATION OTHER THAN FOR CAUSE. If the Optionee's
Business Relationship with the Company is terminated, other than by reason of
death, disability or dissolution 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 30 days from the date the Business Relationship
with the Company ceases, but in no event later than the scheduled expiration
date. In such a case, the Optionee's only rights hereunder shall be those which
are properly exercised before the termination of this option.
(b) TERMINATION FOR CAUSE. If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate upon the Optionee'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
Optionee, after notice thereof, to render services to the Company in accordance
with the terms or requirements of the Optionee's Business Relationship with the
Company; (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 break a contract with the Company.
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(d) NO RIGHT TO COMPENSATION. This option shall not form part
of the terms and conditions of the Optionee's Business Relationship 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 Business Relationship
with the Company (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; DISSOLUTION.
(a) DEATH. If the Optionee is a natural person who dies while
involved in a Business Relationship with 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
full acceleration, by the Optionee'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 Optionee is a natural person whose
Business Relationship with the Company is terminated 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 the Business Relationship with the
Company was terminated, 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.
(d) DISSOLUTION. If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate as of the date of such event (and shall thereafter not be exercisable
to any extent whatsoever), and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
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 shares subject to this option and cash in lieu of a
fractional share must be paid to permit the Optionee to exercise completely such
final installment. Any fractional share with respect to which an installment of
this option cannot be exercised because of the limitation contained in the
preceding sentence shall remain subject to this option and shall be available
for later purchase by the Optionee in accordance with the terms hereof.
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 the principal executive office of the Company, 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
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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 Optionee
and if the Optionee shall so request in the notice exercising this option, shall
be registered in the name of the Optionee 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
Optionee, 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 or pursuant
to a valid domestic relations order or an order arising out of family law
proceedings involving the Optionee, his or her spouse or minor children. Except
as set forth in the preceding sentence, during the Optionee's lifetime, only the
Optionee may exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the
Scheme, this Agreement, nor the grant of this option imposes any obligation on
the Company to continue to maintain a Business Relationship with the Optionee.
13. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. The Optionee shall have
no rights as a shareholder with respect to the Option Shares until such time as
the Optionee has exercised this option by delivering a notice of exercise and
has paid in full the purchase price for the number of shares for which this
option is to be 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 share splits and mergers. Provisions in the Scheme for adjustment with
respect to shares 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. 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 Ordinary Shares or other property acquired pursuant to this option, the
Optionee hereby agrees that the Company may withhold from the Optionee's Option
Shares 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 Option Shares or other remuneration or in kind from the Ordinary Shares or
other property otherwise deliverable to the Optionee on exercise of this option.
The Optionee further agrees that, if the Company does not withhold an amount
from the Optionee's Option Shares or other remuneration sufficient to satisfy
the withholding obligation of the Company, the Optionee will make reimbursement
on demand, in cash, for the amount underwithheld.
16. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Scheme.
17. 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.
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(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. If the Optionee is a resident of the U.S., 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; otherwise this Agreement shall be governed by and
interpreted in accordance with the laws of Ireland, or the laws of any
jurisdiction in which the Company or its successors in interest may be
organized.
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IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
IONA TECHNOLOGIES PLC
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OPTIONEE
By:
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Print Name of Optionee ▇▇▇▇▇ ▇▇▇▇▇▇ - CHIEF EXECUTIVE OFFICER
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