Exhibit 10.48
BREAKAWAY SOLUTIONS, INC.
May 14, 1999
Xxxx Xxxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxx:
Breakaway Solutions, Inc. (the "Company") is pleased to offer you the
position of Managing Director of the Company's Internet Solutions Service Line
(the "Position") subject to the terms and conditions set forth in this letter
agreement ("Agreement"). In consideration of the mutual agreements set forth
below, you and the Company agree to the following:
1. EFFECTIVE DATE; TERM; EFFECT OF TERMINATION OF THIS AGREEMENT.
(a) EFFECTIVE DATE. This Agreement shall be effective on the date set forth
above (such date being referred to as the "Effective Date") and shall continue
until your employment with the Company is terminated. In connection with your
execution of this Agreement you agree that upon request of the Company you shall
provide proof of your legal right to work in the United States as required by
the U.S. Immigration and Naturalization Service.
(b) EFFECT OF TERMINATION OF THIS AGREEMENT. Termination of your employment
with the Company shall terminate this Agreement. Following termination of this
Agreement, this Agreement shall become null and void and no party hereto (or any
of their respective directors, officers or employees) shall have any liability
or further obligation to any other party hereto under this Agreement, except as
provided in Sections 3, 4, 5, 6 and 7 of this Agreement, each of which
provisions shall survive termination of this Agreement. Nothing contained in
this Section 1 shall relieve any party from liability for any breach of this
Agreement occurring prior to any termination.
2. POSITION, DUTIES AND DURATION OF ASSIGNMENT. You will serve in the Position
with such duties and responsibilities as may be reasonably assigned by the Chief
Executive Officer, and as are commensurate with the duties and responsibilities
of managing directors of companies that are of comparable size and in comparable
industries to the Company. You will report to the Chief Executive Officer. You
will devote all of your business time, skill, attention and best efforts to the
Company's business and to discharge and fulfill the responsibilities assigned to
you by the Company during your employment. You shall not render services to any
other person or entity without the prior written consent of the Company, and you
shall not engage in any activity which conflicts or interferes with the
performance of the duties and responsibilities of the Position. You acknowledge
that your employment with the Company is "at will" and is subject to termination
by either the Company or you at any time, with or without cause. You will
perform the duties and responsibilities of the Position principally from
Haverford, Pennsylvania,
or the vicinity thereof, except for reasonable periodic travel that may be
necessary in connection with the performance of the duties and responsibilities
of the Position.
3. COMPENSATION AND BENEFITS.
(a) SALARY. During your employment you will receive a base salary of
$165,000 per annum paid in accordance with the Company's normal payroll
practice. The Company will make such deductions, withholdings and other payments
from sums payable pursuant to this Agreement which are required by law for taxes
and other charges, or which you request pursuant to payroll deductions chosen by
you. In the event of your death, the Company will make all salary payments,
profit sharing payments and expense reimbursements which are accrued and not yet
paid as of the date of your death to your legal representative. All dollar
amounts stated in this and all other Sections of this Agreement refer to United
States currency.
(b) PROFIT SHARING. For each fiscal year, you will be eligible to receive
profit sharing distributions of up to an aggregate of 25% of annual salary for
such fiscal year contingent on the Company achieving specified profit targets as
specified by the Company's Board of Directors, such distributions to be made at
times and in the percentage amounts as set forth in the Company's profit sharing
plan.
(c) BENEFITS. You will be entitled to participate in or receive such
benefits under the Company's employee benefit plans and policies and such other
benefits which may be made available as in effect from time to time and as are
provided to officers of the Company. The Company may change, amend, modify or
completely eliminate any benefit plan from time to time.
(d) BUSINESS EXPENSES. You will be entitled to reimbursement for necessary
and reasonable business expenses incurred by you in your employment with the
Company in accordance with accounting procedures as the Company shall adopt from
time to time.
(e) VACATION/HOLIDAYS. During your employment under this Agreement you will
be entitled to four weeks paid vacation, accrued in accordance with Company
policies, and Company holidays in accordance with the Company's holiday
policies, as they may be amended from time to time.
(f) RECEIPT OF DOCUMENTATION. You acknowledge that you have received from
the Company copies of the Company's benefits plans. You understand and agree
that the Company has reserved the right and option, in its sole discretion, to
change, interpret or modify these and all other plans or policies at any time in
accordance with the terms of the respective plans or policies.
4. RESTRICTIONS AND CONDITIONS.
As an express condition of this Agreement and your continued employment
with the Company, you agree to comply with the agreements and other conditions
in this Section.
(a) AGREEMENT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. While employed by
the Company and thereafter, you shall not, directly or indirectly, use any
Confidential Information
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(as hereinafter defined) other than pursuant to your employment by, and for the
benefit of, the Company, or disclose to anyone outside of the Company any such
Confidential Information. The term "Confidential Information" as used throughout
this Agreement shall mean all trade secrets, proprietary information, inventions
and developments, including customer lists, business plans, and all other data
or information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company
(including you) or received by the Company from an outside source, which is in
the possession of the Company and which is maintained in confidence by the
Company or which might permit the Company or its clients or customers
(hereinafter collectively referred to as "Clients") to obtain a competitive
advantage over competitors who do not have access to such trade secrets,
proprietary information, or other data or information. This provision does not
apply to any Confidential Information that the Company has voluntarily disclosed
to the public that you are required by law, court order or otherwise to
disclose, or that has otherwise entered the public domain through no fault of
yours. You understand that the Company from time to time has in its possession
information which is claimed by others to be proprietary and which the Company
has agreed to keep confidential. You agree that all such information shall be
Confidential Information for purposes of this Agreement.
(b) ASSIGNMENT OF DEVELOPMENTS. You agree that all Confidential Information
and all other discoveries, inventions, ideas, designs, concepts, processes,
methods and improvements or parts thereof, conceived or otherwise made by you
during the period of your employment by the Company, alone or jointly with
others and in any way relating to the Company's present or proposed products or
services or to tasks assigned to you during the course of your employment,
whether or not made during your regular working hours or on the Company's
premises (hereinafter collectively referred to as "Developments"), together with
all products or services which embody such Developments, shall be the sole
property of the Company. You agree to, and hereby do, assign to the Company all
your right, title and interest throughout the world in and to all Developments
and to anything tangible which evidences or constitutes any such Development.
You agree that all such Developments shall constitute works made for hire under
the copyright laws of the United States and hereby assign and, to the extent any
such assignment cannot be made at present, you hereby agree to assign to the
Company all copyrights, patents, reproductions and other proprietary rights you
may have in any such Development, together with the right to file for and/or own
wholly without restriction United States and foreign patents, trademarks, and
copyrights with respect thereto.
(c) EXCEPTIONS TO THIS AGREEMENT. You hereby certify that you have informed
the Company in writing of any and all continuing obligations which you have to
any previous employer and all Confidential Information or Developments which you
claim as your own or otherwise intend to exclude from this Agreement.
(d) EMPLOYEE'S OBLIGATION TO COOPERATE. You will, at any time during your
employment, on request of the Company, execute all documents and perform all
lawful acts which the Company considers necessary or advisable to secure its
rights hereunder and to carry out the intent of this Agreement.
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(e) RETURN OF PROPERTY. At any time on request of the Company, you shall
return promptly all documents and other property belonging to the Company or its
Clients or business partners.
(f) RESTRICTIONS ON CERTAIN POST-EMPLOYMENT ACTIVITIES.
(i) As long as you are employed by the Company and for a period of nine
months after the termination of your employment for any reason (except in
conjunction with a general solicitation for employees), you shall not solicit,
or induce to resign any employee of the Company (or anyone who was an employee
of the Company during the period beginning six months prior to your termination
of employment with the Company), or assist in such hiring by any other person or
business entity or encourage any such employee to terminate his or her
employment with the Company.
(ii) As long as you are employed by the Company, and for a period of
nine months following termination of your employment, you shall not either
directly or indirectly (a) solicit, divert or attempt to divert from the Company
to yourself or to any other person or business entity the business or patronage
of any of the Clients or business partners of the Company; or (b) provide
services, whether on your own behalf or as an owner, manager, consultant,
director, officer, partner or employee of any other person or business entity,
to any of the Clients of the Company; provided, however, that clause (b) shall
not prohibit you from accepting employment as a direct employee of Clients or
business partners. In the event that you breach any of the terms of this
Section, the prohibitions set forth in this Section will remain in effect for
nine months from the discovery of such breach by an officer of the Company.
(g) NO OTHER AGREEMENT. You warrant that you are not subject to any
agreement or obligation with any other party which would or could in any way
conflict with your obligations under this Agreement. You agree to indemnify and
hold harmless the Company from any claims, actions or damages arising from or
relating to a breach or alleged breach of this subsection.
(h) EQUITABLE REMEDIES; SURVIVAL. You and the Company agree that upon a
breach or violation of any provision of this Section 4, the Company, in addition
to all other remedies which might be available to it, shall be entitled as a
matter of right to equitable relief in any court of competent jurisdiction,
including the right to obtain injunctive relief or specific performance. You and
the Company agree that the remedies at law for any such breach or violation are
not fully adequate and that the injuries to the Company as a result of the
continuation of any breach or violation are incapable of full calculation in
monetary terms and, therefore, constitute irreparable harm. The provisions of
this Section 4 shall survive termination of this Agreement.
5. COMPENSATION AND BENEFITS UPON TERMINATION OF EMPLOYMENT.
Upon termination of your employment (such date of termination being
referred to as the "Termination Date"), regardless of when such termination
occurs, the Company will pay you the compensation and benefits as described in
this Section 5.
(a) The Company will pay you on or about the Termination Date all salary,
profit sharing and vacation pay, if any, that has been earned (or, in the case
of profit
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sharing payments, that would have been earned) or accrued through the date of
your termination from the Company and has not yet been paid (in the case of
profit sharing payments, such amounts to be pro-rated based on the Termination
Date).
(b) You may be entitled to continuation of applicable life insurance,
accidental death and disability or other benefits for one (1) year, provided
that you make an appropriate conversion and comply with the requirements of the
applicable benefit plans.
(c) You will not be entitled to receive any other compensation or benefits
provided by, through or on behalf of the Company, under this Agreement other
than benefits that are vested as of the date of termination and that are payable
in accordance with the terms of any applicable benefit plan.
(d) You acknowledge and agree that the compensation and benefits provided
above have been negotiated with the Company and shall be deemed to fully satisfy
any notice requirements which may be required by any jurisdiction. This Section
5 constitutes your only rights to compensation, benefits, damages, or other
remedies arising out of the termination of your employment.
(e) The provisions of this Section 5 shall survive termination of this
Agreement.
6. CHANGE OF CONTROL PROVISIONS.
Upon the occurrence of a Change of Control, the vesting of any options granted
to you to purchase shares of Company Common Stock, if any, shall automatically
vest in full. For purpose of this Section 6, "Change of Control" shall mean the
occurrence of any of the following events:
(i) the approval by shareholders of the Company of a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
(ii) any approval by the shareholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company or an agreement or
agreements for the sale, lease, exchange, disposition or other transfer (in one
transaction or a series of transactions) by the Company of all or substantially
all of the assets of the Company; or
(iii) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becoming the "beneficial owner"
(as defined in Rule l3d-3 under said Act), directly or indirectly, of securities
of the Company representing 50% or more of the total voting
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power represented by the Company's then outstanding voting securities; PROVIDED
HOWEVER, that this section shall not apply to any person or persons who, either
individually or jointly, on the date of this Agreement beneficially owned
securities of the Company representing 50% or more of the total voting power
represented by the Company's then outstanding voting securities.
7. SEVERANCE BENEFITS.
(a) In the event that the Company terminates your employment other than
for cause (as defined below) or materially reduces your compensation and
benefits, you shall be entitled to the following severance benefits: (i) a
payment, within thirty (30) days of such termination, in the amount of nine (9)
months salary then in effect, less standard deductions and withholdings, (ii) a
payment, within thirty (30) days after the close of the quarter in which your
employment was terminated, for the pro rated amount of the quarterly profit
sharing payment paid by the Company to which you would have been entitled had
you been employed by the Company at the close of such quarter, less standard
deductions and withholdings, (iii) the acceleration of vesting with respect to
options to purchase Common Stock of the Company held by you at the time of such
termination as if your employment with the Company had continued uninterrupted
for an additional twelve (12) months, and (iv) the continuation for a period of
one (1) year following such termination of your right to participate in or enjoy
benefits under any benefit plan of the Company in which you are participating at
the time of such termination, so long as such benefit plan remains generally
available to similarly situated employees of the Company. You agree that nothing
in this Agreement obligates the Company to maintain any such benefit plans or
prevents the Company from modifying or eliminating the rights of all
participants under such benefit plans from time to time, in the sole discretion
of the Board.
(b) The Company's termination of your employment with the Company shall
be without "cause" if the Company terminates your employment with the Company
for any reason other than: (i) the substantial and continuing failure, after
thirty (30) days notice thereof, to render services to the Company or any
subsidiary of the Company in accordance with the terms or requirements of your
position and duties; (ii) gross negligence or willful misconduct in the
performance of your duties or a breach of fiduciary duty to the Company or any
subsidiary of the Company; (iii) the commission of an act of embezzlement or
fraud; (iv) deliberate disregard of the written rules or policies of the Company
or any subsidiary of the Company which results in direct or indirect loss,
damage or injury to the Company or any subsidiary of the Company; (v) the
intentional unauthorized disclosure of any trade secret or confidential
information of the Company or any subsidiary of the Company; or (vi) the
conviction of a felony.
8. GENERAL.
(a) EMPLOYMENT ELIGIBILITY. From time to time after your first day of
employment, you may be asked to provide proof of your identity as well as your
legal right to work in the United States. If for any reason you are unable to
provide proof of your identity as well as your legal right to work in the United
States, the Company may not be able to employ you in the Position and may
terminate your employment. If you are a citizen of a restricted country (as
identified by the U.S. Department of Commerce) you must receive a validated
license from the
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Office of Export Licensing. This license must be obtained within a time limit
established by the Company.
(b) GOVERNING LAW. The validity, interpretation, effect, and enforcement of
this Agreement shall be governed by the internal laws of the Commonwealth of
Massachusetts, without regard to choice of law rules.
(c) ENTIRE AGREEMENT. In making your decision whether or not to accept this
offer, you agree that you have not relied upon any promises or representations
made by the Company, other than those made in this letter. This Agreement sets
forth the entire agreement and understanding between you and the Company with
respect to your employment by the Company, and supersede any other negotiations,
agreements, understandings, oral agreements, representations or past or future
practices, whether written or oral, with, by or of the Company.
Each Company plan or policy referred to herein directly or by implication
is incorporated herein only insofar as it does not contradict this Agreement. If
any inconsistencies between this Agreement and any such plan or policy or future
plan or policy exist, the most recent applicable plan document or official
policy shall control.
(d) MODIFICATION. This Agreement may not be amended, modified, changed or
discharged in any respect except as agreed in writing and signed by you and the
Chief Executive Officer of the Company.
(e) SEVERABILITY AND INTERPRETATION. In the event that any provision or any
portion of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction, such provision or portion thereof shall be considered
separate and apart from the remainder of this Agreement and the other provisions
shall remain fully valid and enforceable. In the event that any provision is
held to be overly broad as written, such provision shall be deemed amended to
narrow its application to the extent necessary to make the provision enforceable
according to applicable law and enforced as amended.
(f) NOTICES. All notices required by this Agreement shall be given in
writing either by personal delivery or by first class mail, return receipt
requested. Notices given to the Company shall be addressed to the Company at its
address set forth on the first page of this Agreement, or at such later address
where the Company's principal offices are located. Notice to you shall be to the
last known address as set forth in your personnel file. Notice given by personal
delivery shall be deemed given when delivered. Notice given by mail shall be
deemed given five (5) days following the date of mailing.
(g) MISCELLANEOUS. The rights of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the present and future
subsidiaries of the Company, any and all subsidiaries of a subsidiary, and
successors and assigns of the Company. No assignment of this Agreement by the
Company will relieve the Company of its obligations hereunder. You shall not
assign any of your rights and/or obligations under this Agreement and any such
attempted assignment will be void. This Agreement shall be binding upon your
heirs, executors, administrators or other legal representatives and their legal
assigns.
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(h) WAIVER. A waiver by either party of any of the terms or conditions of
this Agreement in any instance shall not be deemed or construed to be a waiver
of such term or condition for the future, or of any subsequent breach thereof.
All remedies, rights, undertakings, obligations and agreements contained in this
Agreement shall be cumulative and none of them shall be in limitation of any
other remedy, right, undertaking, obligation or agreement of either party.
(i) SURVIVAL. The provisions of this Section 8 shall survive termination of
this Agreement.
If you agree with the foregoing, please sign below and return the original
to me. You may keep the enclosed copy for your records.
Sincerely,
Breakaway Solutions, Inc.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
Agreed to this 16 day of May, 1999
Employee: /s/ Xxxx X. Xxxxxx
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*EMPLOYMENT AGREEMENT*
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