EXHIBIT 10.60
BREAKAWAY SOLUTIONS, INC.
00 XXXXX XXXXX, 0XX XXXXX
XXXXXX, XX 00000
November 22, 2000
Xx. Xxxxxxxxxxx X. Xxxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxxx:
This letter agreement (the "Amendment") will serve as an amendment to
the letter agreement between you and Breakaway Solutions, Inc. (the "Company")
dated February 17, 1999 regarding your employment by the Company (the
"Agreement"). Capitalized terms used in this Amendment shall have the same
meaning as in the Agreement unless otherwise specified. In consideration of the
mutual agreements set forth below, you and the Company have agreed to amend the
Agreement as follows:
1. Section 1(a) of the Agreement is hereby deleted in its entirety and
replaced with the following:
(a) EFFECTIVE DATE. This Agreement shall be effective upon the
Company's receipt of a copy of this Agreement originally executed by
you (such date being referred to as the "Effective Date") until August
22, 2001 (the "Employment Period") unless sooner terminated by you or
the Company in accordance with this Agreement.
2. The second sentence of Section 1(b) of the Agreement is hereby
deleted in its entirety and replaced with the following:
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 party under this Agreement, except as provided in
this Section 1(b) and Sections 3(c)(iii), 4, 5 and 6 of this Agreement.
3. Section 2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
DUTIES. You will perform such duties as may be reasonably assigned to
you from time to time by the President or the Chief Operating Officer
of the Company and that are substantially similar to, or less demanding
than, the duties you have performed for the Company prior to the date
of this Amendment, provided that no travel outside of the Commonwealth
of Massachusetts will be required and any
duties shall be of an executive nature. You acknowledge and agree that
you shall generally perform these duties outside the premises of the
Company unless the Company specifically instructs you to the contrary,
and, without limitation of any other provision of this Agreement, that
you will not have an assigned office or parking space at any Company
location or access to the Company's computer system or network. You
agree that you will not represent yourself as an authorized agent or
employee of the Company for the purpose of entering into any
transaction or agreement. You shall not engage in any activity which
conflicts or interferes with the performance of your duties. You shall
not render services to any other person or entity for which you receive
compensation without the prior written consent of the Company.
4. Sections 3(a) and (b) of the Agreement are deleted in their entirety
and replaced with the following:
(a) SALARY. During your employment through May 22, 2001
(unless you are in default of your obligations hereunder), you will
continue to receive a Base Salary of $9,583.33 per pay period in
accordance with the semi-monthly payment schedule now being employed by
the Company. During the period from May 22, 2001 through the end of the
Employment Period on August 15, 2001 you will receive a Base Salary of
$1,000 per semi-monthly pay period. 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. You will not be eligible for any profit sharing or bonus payments
for the fourth quarter of 2000 (if any), for the undetermined year end
2000 bonus, or any other payment except as set forth herein. No further
vacation time, personal time, or sick time shall accrue after November
22, 2000. In the event of your death, the Company will make all salary
payments 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) BENEFITS AND BUSINESS EXPENSES. You will be entitled to
participate in or receive all heath and dental insurance benefits under
the Company's employee benefit plans and policies in effect from time
to time. The Company will pay such portion of the premiums for such
coverage as it provides to other Massachusetts-based employees through
August 15, 2001. The Company may change, amend, modify or completely
eliminate any benefit plan from time to time. You will be entitled to
reimbursement for necessary and reasonable business expenses (i)
incurred by you under the terms and conditions of the Agreement as in
effect prior to this Amendment prior to November 22, 2000 and (ii)
incurred by you from November 22, 2000 through August 15, 2001 pursuant
to the prior written authorization of the President or the Chief
Operating Officer of the Company.
5. Section 3(c)(iii) of the Agreement is amended by deleting the second
and third sentences thereof in their entirety and replacing them with the
following sentence: If your
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employment is terminated prior to August 15, 2001 (A) by the Company without
"cause," as defined below or (B) by you with "good reason," as defined below,
the Company shall repurchase all your Company stock and vested options at fair
market value as of the date of termination.
6. Sections 3(d), (e), (f) and (g) of the Agreement are deleted in
their entirety.
7. The introductory clause of Section 5(b) is hereby deleted in its
entirety and replaced with the following:
(b) If your employment is terminated at any time before August
15, 2001 (i) by the Company other than for "cause" as defined below, or
(ii) by you for "good reason":
8. Section 5(c) is hereby deleted in its entirety and replaced with
the following:
(c) Intentionally omitted.
9. The following additional provisions are hereby added to the
Agreement:
(a) You acknowledge and agree that the Agreement as amended by
the Amendment supercedes the Agreement and that any provision of the
Agreement deleted therefrom by the Amendment is null, void and of no
further force and effect. Without limitation of the foregoing, you
acknowledge and agree that the continued inclusion of Section 3(c)(iii)
in the Agreement after the date of this Amendment is not an admission
by the Company of the validity or enforceability of such Section
3(c)(iii) and shall not waive, limit or otherwise compromise the right
of the Company to assert that such Section 3(c)(iii) was superceded by
a subsequent agreement between you and the Company or otherwise is
invalid. You hereby fully, forever, irrevocably and unconditionally
release, remise and discharge the Company, its officers, directors,
stockholders, corporate affiliates, attorneys, agents and employees,
from any and all claims, charges, complaints, demands, actions, causes
of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which
you ever had or now have against the Company, its officers, directors,
stockholders, corporate affiliates, attorneys, agents and employees,
including, but not limited to, all claims arising out of your
employment (including claims for wrongful termination whether in
contract or in tort or under statute), all employment discrimination
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
SS.2000e ET SEQ., the Americans With Disabilities Act, 42 U.S.C.
SS.12101 ET SEQ., and the Massachusetts Fair Employment Practices Act,
M.G.L. c.151B, SS.1 ET SEQ., all wrongful discharge claims or other
common law claims and all claims arising out of the Agreement prior to
its amendment by this Amendment. This release shall not apply to the
Agreement as amended by this Amendment. You also agree to execute
contemporaneously the letter regarding trading of Breakaway shares as
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attached as EXHIBIT A hereto and the resignation letter attached as
EXHIBIT B hereto. This release shall not be interpreted (i) to limit
the coverage of the Employee under the Company's Directors and Officers
Liability Insurance in effect prior to the date of this Amendment or
(ii) to limit any obligation of the Company to indemnify the Employee
with respect to his acts prior to the date of this Amendment.
(b) The Company hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges you, your affiliates,
attorneys and agents, from any and all claims, charges, complaints,
demands, actions, causes of action, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which
it ever had or now has against you, your affiliates, attorneys or
agents, including, but not limited to, all claims arising out of your
employment and all claims arising out of the Agreement prior to its
amendment by this Amendment This release shall not apply to the
Agreement as amended by this Amendment. This release shall not apply to
any breach by you, prior to the date hereof, of Section 4 of the
Agreement.
(c) You agree to return all Company or Company related
records, property and equipment (including, without limitation, any
Company owned laptop PC and mobile phone provided to you) in your
possession or control and all other Company files and documents
(including, without limitation, information or data regarding Company
customers, prospects, and employees or pricing or costing information
or data). You further agree to leave intact all electronic Company
documents and e-mails received or sent by you during the period of your
employment (including those which you developed or helped develop
during your employment). You represent and acknowledge that all Company
records, documents, and communications (whether in hard copy or
electronic form) are the exclusive property of the Company and have not
been provided to any other person, firm, or entity absent the Company's
consent.
(d) You understand and agree, and the Company understands and
agrees, that this amendment is entered into in connection with the
resolution of disputes regarding your employment with the Company, and
does not constitute an admission of liability or wrongdoing on the part
of you or the Company or any other person, firm or entity.
(e) To the extent permitted by law, you understand and agree,
and the Company understands and agrees, that the terms and contents of
this Agreement, and the contents of the negotiations and discussions
resulting in this Agreement, shall be maintained as confidential by you
and the Company, and our respective agents and representatives, and
none of the above shall be disclosed except to the extent required by
federal or state law or as otherwise agreed to in writing by the
authorized agent of each party.
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(f) You agree, and the Company agrees, to cooperate fully with
each other in the defense or prosecution of any claims or actions or
government investigations or proceedings which are currently in
existence or which may be brought in the future against or on behalf of
you, on the one hand, or the Company or any of its employees, on the
other hand. Full cooperation in connection with such claims and actions
shall include, but not be limited to, appropriate individuals being
available to meet with counsel to prepare for trial or discovery and to
act as a witness when requested at reasonable times designated by the
requesting party. You acknowledge that your communications with
internal and external counsel for the Company in any matter were
undertaken in your capacity as a representative of the Company, and
that such communications are protected from disclosure by the
attorney-client privilege which belongs solely to the Company. As such,
you further acknowledge that only the Company can waive the
attorney-client privilege and that you will not unilaterally waive the
attorney-client privilege concerning the communications.
(g) (i) You understand and agree that you shall not make any
false, disparaging or derogatory statements in public or private
regarding the Company or any of its directors, officers, employees,
agents, or representatives or the Company's business affairs and
financial condition.
(ii) The Company agrees to instruct its officers and directors
in writing not to make any false, disparaging or derogatory statements
in public or private regarding you, your agents or representatives or
your business affairs or financial condition expressly informing such
officers and directors that any violation shall result in a breach of
contract that may adversely affect the Company.
(h) You represent and warrant that, to the best of your
knowledge, you are not in possession of any material, non-public
information regarding the Company.
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Except as set forth in this Amendment, the Agreement shall remain in
full force and effect.
If you agree with the foregoing, please sign below and return the
original to me. You may keep the enclosed copy for your records.
Very truly yours,
Breakaway Solutions, Inc.
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Xxxxxxx Xxxxxxxxxxx, COO
Agreed as of this 23rd day of November, 2000.
/s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxxx
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EXHIBIT A
November 22, 2000
Breakaway Solutions, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
For Ten Dollars ($10.00) and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the undersigned,
the undersigned agrees as follows:
1. For a period commencing on November 22, 2000 through and including
August 15, 2001, the undersigned agrees that he will not (i) offer,
pledge, sell, contract to sell or otherwise transfer or dispose of,
directly or indirectly, any shares of common stock, par value
$0.000125 per share ("Common Stock"), issued by Breakaway Solutions,
Inc., a Delaware corporation (the "Company"), or any securities
convertible into or exercisable or exchangeable for Common Stock or
for any successor security thereto, however, transfers by private
placement or similar transaction in the Common Stock not effected by
utilizing the NASDAQ National Market to process the sale shall be
exempted from the foregoing restrictions, provided that the
transferee in any such transaction agrees in writing to be bound by
the limitations set forth in this letter agreement prior to
consummation of the applicable transaction, or (ii) enter into any
option or contract to purchase or sell, or enter into any swap or
other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock,
unless the settlement date of such arrangement is after August 22,
2001, whether any such transaction described in clause (i) or (ii),
above, is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise (provided that he may engage in any
such transaction described in (i) or (ii) above in an amount not
exceeding the Daily Amount (as defined below) of shares of Common
Stock (as adjusted for any future forward or reverse stock splits)
on any business day in which the NASDAQ National Market will process
sale orders. At the Company's discretion, the undersigned agrees to
permit the Corporation to issue "stop orders" or other instructions
to its transfer agent to effect the terms of this letter.
2. For purposes of this letter agreement, the Daily Amount shall be the
lesser of (a) 30,000 shares or (b) seven percent (7%) of the average
of the gross daily trading volumes of the Common Stock on the NASDAQ
National Market for the 10 trading days immediately preceding the
date of the applicable transaction described in Section 1 above,
provided that the Daily Amount shall not be less than 10,000 shares.
The daily trading volumes used to determine the 10-day average
provided for in the preceding sentence shall be the gross trading
volumes reported for the Common Stock
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by NASDAQ, as set forth in the official web site of NASDAQ,
accessible as of the date hereof at xxx.XXXXXX.xxx. For purposes of
example, attached hereto as Exhibit 1 are the applicable gross daily
trading volumes of the Common Stock for the period commencing August
23, 2000 through November 21, 2000 as stated at xxx.XXXXXX.xxx.
3. The Daily Amount trading day limit will not be cumulative and will
not permit transactions exceeding the per day limit by virtue of the
undersigned's failure to effect an otherwise prohibited disposition
in an amount not to exceed the maximum allowed amount on any other
date.
4. Nothing in this letter or otherwise relieves the undersigned from
compliance with relevant obligations under the Securities Act of
1933, as amended, the Securities Exchange Act of 1934 , as amended
(the "Exchange Act"), any rules or regulations promulgated by the
Securities and Exchange Commission, any relevant stated securities
laws, or other applicable laws, regulations, or orders. In addition,
the undersigned agrees that this letter does not limit or affect the
applicability of the Company's stock trading policies from time to
time in effect, provided that the Company acknowledges and agrees
that the undersigned shall not be subject to the so-called "trading
blackout" policies of the Company beginning on the third trading day
after the date on which the Company issues a press release
announcing its actual financial results for the fiscal year of the
Company ended December 31, 2000.
5. Notwithstanding the foregoing (a) gifts and transfers by will or
intestacy or (b) transfers to (1) the undersigned's immediate family
or (2) a trust, the beneficiaries of which are the undersigned
and/or members of the undersigned's immediate family, shall not be
prohibited by this agreement; provided, that (x) the donee or
transferee agrees in writing to be bound by the foregoing in the
same manner as it applies to the undersigned and (y) if the donor or
transferor is a reporting person subject to Section 16(a) of the
Exchange Act, any gifts or transfers made in accordance with this
paragraph shall not require such person to, and such person shall
not voluntarily, file a report of such transaction on Form 4 under
the Exchange Act. The term "immediate family" shall mean spouse,
lineal descendants, father, mother, brother or sister of the
transferor and father, mother, brother or sister of the transferor's
spouse.
6. This Agreement is governed by the laws of the Commonwealth of
Massachusetts and is deemed to be made under seal.
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Very truly yours,
/s/ Xxxxxxxxxxx Xxxxxxx
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(Name)
----------------------------------
(Address)
ACCEPTED:
BREAKAWAY SOLUTIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Its: COO
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