EXHIBIT 10.29
BREAKAWAY SOLUTIONS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
BREAKAWAY SOLUTIONS, INC. (the "Company") hereby grants this 18th day
of February, 1999 (the "Grant Date") to Xxxxxxxxxxx Xxxxxxx (the "Employee"), an
option to purchase a maximum of four hundred seventy-six thousand one hundred
forty-three (476,143) shares (the "Option Shares") of the Company's Common
Stock, par value $.0001 per share ("Common Stock") at the price of one dollar
and forty-two cents ($1.42) per share, on the following terms and conditions.
1. GRANT UNDER 1998 STOCK PLAN.
This option is granted pursuant to and is governed by the Company's
1998 Stock Plan (the "Plan"), the terms and conditions of which are
incorporated herein by reference, and, unless the context otherwise
requires, terms used herein shall have the same meaning as in the Plan.
Determinations made in connection with this option pursuant to the Plan
shall be governed by the Plana s it exists on the Grant Date.
2. GRANT AS NON-QUALIFIED STOCK OPTION; OTHER OPTIONS.
This option shall be treated for federal income tax purposes as a
Non-Qualified Option (rather than 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 or any Related Corporation (as
defined in the Plan), but a duplicate original of this instrument shall
not effect the grant of another option.
3. VESTING OF OPTION.
Except as otherwise provided in this Agreement, and subject to all
other terms and conditions of this Agreement, this option may be
exercised prior to the tenth (10th) anniversary of the Grant Date (the
"Expiration Date") in installments for not more than the number of
Option Shares which are vested as herein below provided.
(a) CONTINUED EMPLOYMENT FOR ONE TO FOUR YEARS.
Three Hundred Eight Thousand Five Hundred Twenty-Seven (308,527) shares
will vest on the Grant Date, and the balance of the Option Shares will
est in equal monthly installments of four thousand six hundred
fifty-six (4,656) shares, each, over the three-year period immediately
following the first anniversary of the date.
(b) TRIGGERING EVENT.
All unvested shares shall immediately become vested in full upon the
occurrence of any of the following events (each, a "Triggering Event"):
(a) the closing of a public offering by the Company of shares of its
Common Stock, (b) a sale of all or substantially all of the Company's
assets or all or substantially all of the shares of its capital stock,
(c) a consolidation or merger of the Company in which a majority of
outstanding shares of the Company's capital stock are exchanged for
securities, cash or other property of any other corporation or business
entity, (d) a consolidation or merger involving the Company as a result
of which the stockholders of the Company immediately prior to such
event do not own, immediately following the occurrence of such event,
at least a majority of the common stock and voting power of the entity
resulting from such consolidation or surviving such merger or (e) the
liquidation or dissolution of the Company. In addition, if the Company
or stockholders of the Company enter into an agreement with respect to
an event described in (b) through (e) of the preceding sentence, then
upon the consummation of such event a Triggering Event shall be deemed
to have occurred upon the date of such agreement.
4. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OTHER THAN FOR CAUSE.
If the Employee ceases to be employed by the Company or any Related
Corporation, other than by reason of death or disability as defined in
Section 5 of termination for cause as defined in Section 4(c) or
termination related to a prohibition by a court of law as set forth in
Section 4(d), no further installments of this option shall vest after
the date Employee ceases to be employed by the Company or any Related
Corporation and, the Company shall exercise its right pursuant to
Section 17 hereof to purchase any Option Shares held by Employee after
the termination of this option pursuant to this Section 4(a). This
option shall terminate on the earlier of (i) thirty (30) days after the
date of termination of the Employee's employment, or (ii) the
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)), the unvested portion of 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.
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(c) DEFINITION OF CAUSE.
"Cause" shall mean that the Employee is terminated for one or more of
the following reasons:
(i) substantial, material and continuing failure, after written
notice thereof, to render services to the Company in
accordance with the terms of Employee's Employment Agreement;
(ii) Gross negligence, willful misconduct, dishonesty or breach of
fiduciary duty to the Company; or
(iii) commission of any act of embezzlement or fraud; or
(iv) deliberate disregard of material rules or material policies of
the Company which results in direct or indirect loss, damage
or injury to the Company; or
(v) willful or intentional material breach or violation of
Employee's Employment Agreement, including without limitation
unauthorized disclosure of any Confidential Information of the
Company; or
(vi) willful or intentional commission of an act which constitutes
unfair competition with the Company or which intentionally
induces any customer or supplier to breach a contract with the
Company; or
(vii) Employee has been convicted of a felony; or
(viii) Employee has been engaged in the abuse of alcohol, illegal
drugs or controlled substances.
"Cause" shall not include any act or omission of which the President or
any member of the Board of Directors has had actual knowledge for at
least 6 months.
(d) LEGAL PROHIBITION.
If Employee's employment terminates in connection with any prohibition
by a court of law on Employee providing services to the Company (a
"Prohibition"), and if such Prohibition occurs (i) during the 180 day
period commencing on the Grant Date, this option shall immediately and
automatically terminate, the Company shall refund to Employee the
exercise price, if any, previously paid by Employee upon exercise of
any installment of this option and the Option Shares issued upon such
exercise shall be automatically cancelled, or (ii)
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during the period commencing on the 181st day after the Grant Date and
ending the 365th day after the Grant Date, this option shall
immediately and automatically terminate as to such number of shares
equal to the product of (A) the difference between 365 and the actual
number of days that have elapsed from the Grant Date until the date of
termination of Employee's employment, multiplied by (B) a fraction, the
numerator of which is 308,527 and the denominator of which is 365, the
Company shall refund to Employee the exercise price, if any, previously
paid by employee upon exercise of any installment of this option and
the Option Shares issued upon such exercise shall be automatically
cancelled.
5. DEATH; DISABILITY.
(a) DEATH.
If the Employee ceases to be employed by the Company and all Related
Corporations by reason of his death, this option may be exercised, to
the extent otherwise exercisable on the date of death, by the estate,
personal representative or beneficiary who has acquired this option by
will or by the laws of descent and distribution, until the earlier of
(i) the Expiration Date or (ii) ninety (90) days from the date of the
Employee's death.
(b) DISABILITY.
If the Employee ceases to be employed by the Company and all Related
Corporations by reason of his or her disability (as defined in
Paragraph 10(B) of the Plan), the Employee shall have the right to
exercise this option, to the extent otherwise exercisable on the date
of termination of employment, until the earlier of (i) the Expiration
Date or (ii) ninety (90) days from the date of the termination of the
Employee's employment.
(c) EFFECT OF TERMINATION.
At the expiration of the ninety (90) day period provided in paragraph
(a) or (b) of this Section 5, or the Expiration Date, whichever is the
earlier, this option shall terminate and the only rights hereunder
shall be those as to which the option was properly exercised before
such termination.
6. PARTIAL EXERCISE.
The Employee may exercise this option in part at any time and from time
to time within the above limits, except that the Employee may not
exercise this option for a fraction of a share unless such exercise is
with respect to the final installment of stock subject to this option
and cash in lieu of a fractional share
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must be paid, in accordance with Paragraph 13(g) of the Plan, to permit
the Employee 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 Employee in accordance with the
terms hereof.
7. PAYMENT OF PRICE.
(a) The option price shall be paid in the following manner:
(i) in cash or by check;
(ii) subject to Section 7(b) below, by delivery of shares of the
Company's Common Stock having a fair market value (as
determined by the Committee) equal as of the date of exercise
to the option price;
(iii) by delivery of an assignment satisfactory in form and
substance to the Company of a sufficient amount of the
proceeds from the xxxx of the Option Shares and an instruction
to the broker or selling agent to pay that amount to the
Company;
(iv) by any combination of the foregoing.
(b) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK. If the
Employee delivers Common Stock held by the Employee ("Old
Stock") to the Company in full or partial payment of the
option price, and the Old Stock so delivered is subject to
restrictions or limitations imposed by agreement between the
Employee and the Company, an equivalent number of Option
Shares shall be subject to all restrictions and limitations
applicable to the Old Stock to the extent that the Employee
paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this
Agreement. Notwithstanding the foregoing, the Employee may not
pay any party of the exercise price hereof by transferring
Common Stock to the Company unless such Common Stock has been
owned by the Employee free of any substantial risk of
forfeiture for at least six months.
8. 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 officer, 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
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it is being exercised and shall be signed by the person or persons
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 is exercised by the
Employee and if the Employee requests 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
is exercised, pursuant to Section 5 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.
9. 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 can exercise this option.
10. NO OBLIGATION TO EXERCISE OPTION.
The grant and acceptance of this option imposes no obligation on the
Employee to exercise it.
11. NO OBLIGATION TO CONTINUE EMPLOYMENT.
Neither the Plan, this Agreement, nor the grant of this option imposes
any obligation on the Company or any Related Corporation to continue
the Employee in employment.
12. NO RIGHT AS STOCKHOLDER UNTIL EXERCISE.
The Employee shall have no rights as a stockholder with respect to the
Option Shares until the date of issuance of a stock certificate to the
Employee. Except as is expressly provided in the Plan with respect to
certain changes in the capitalization and stock dividends of the
Company, no adjustment shall be made for dividends or similar rights
for which the record date is before the date such stock certificate is
issued.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS.
The Plan contains provisions covering the treatment of options in a
number of contingencies such as stock splits and mergers. Provisions in
the Plan for adjustment with respect to stock subject to options and
the related provisions
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with respect to successors to the business of the Company are hereby
made applicable hereunder and are incorporated herein by reference.
14. RESTRICTIONS ON TRANSFER; LEGENDS.
Option Shares will be deemed "restricted securities" for purposes of
the Securities Act of 1933, as amended (the Securities Act").
Accordingly, such shares must be sold in accordance with the
registration requirement of the Securities Act and any State "Blue Sky"
laws or an exemption therefrom. Employee acknowledges that the Company
may put a legend on the certificate or certificates representing the
Option Shares stating that the shares represented thereby have
restrictions on transfer and are subject to rights of first refusal and
repurchase by the Company.
15. WITHHOLDING TAXES.
If the Company or any Related Corporation in its discretion determines
that it is obligated to withhold any tax in connection with the
exercise of this option, the vesting or transfer of Option Shares
acquired on the exercise of this option, or the making of a
distribution or other payment with respect to the Option Shares, the
Employee hereby agrees that the Company or any Related Corporation may
withhold from the Employee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash
from such wages or other remuneration or in kind from the Common Stock
or other property otherwise deliverable to the Employee on exercise of
this option. The Employee further agrees that, if the Company or any
Related Corporation does not withhold an amount from the Employee's
wages or other remuneration sufficient to satisfy the withholding
obligation of the Company or Related Corporation, the Employee will
make reimbursement on demand, in cash, for the amount underwithheld.
16. COMPANY'S RIGHT OF FIRST REFUSAL.
(a) EXERCISE OF RIGHT.
If the Employee (or successor and assigns) or his or her legal
representative (the "Transferor") desires to transfer all or any part
of the Option Shares to any person other than the Company (an
"Offeror"), the Transferor shall: (i) obtain in writing a bona fide
offer (the "Offer") for the purchase thereof from the Offeror; and (ii)
give written notice (the "Option Notice") to the Company setting froth
the Transferor's desire to transfer such shares, which Option Notice
shall be accompanied by a photocopy of the Offer and shall set forth at
least the name and address of the Offeror and the price and terms of
the bona
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fide offer. Upon receipt of the Option Notice, the Company shall have
an assignable option to purchase all of such shares (the "Company
Option Shares") specified in the Option Notice, such option to be
exercisable by giving, within ninety (90) days after receipt of the
Option Notice, a written counter-notice to the Transferor (the
"Counter-Notice"). If the Company elects to purchase any or all of such
Company Option Shares, it shall be obligated to purchase, and the
Transferor shall be obligated to sell to the Company, such Company
Option Shares that the Company elects to purchase as set forth in the
Counter-Notice at a per share price equal to the lesser of (i) the per
share price (and, except as set forth below, on the same terms)
indicated in the Offer; or two, the Fair Market Value as defined in
Section 17(b) and using the date of the Option Notice as the date of
determination, within thirty (30) days of the date of delivery by the
Company of the Counter-Notice. If the Company elects to purchase any or
all of such Company Option Shares, it may, in its sole discretion, pay
the purchase price for such Company Option Shares in accordance with
the terms of a promissory note, in the form attached hereto as Exhibit
A.
(b) SALE OF OPTION SHARES TO OFFEROR.
The Transferor may, for sixty (60) days after the expiration of the
ninety (90) day period during which the Company may give the
Counter-Notice, sell, pursuant to the terms of the Offer, any or all of
such Company Option Shares not purchased or agreed to be purchased by
the Company or its assignee; PROVIDED, HOWEVER, that the Transferor
shall not sell such Company Option Shares to the Offeror if the Offeror
is a competitor of the Company and the Company gives a written notice
to the transferor, within ninety (90) days of its receipt of the Option
Notice, stating that the Offeror is a competitor and therefore
Transferor shall not sell such Company Option Shares to such Offeror;
and PROVIDED, FURTHER, that prior to the sale of such Company Option
Shares to the Offeror, the Offeror shall execute an agreement with the
Company pursuant to which the Offeror agrees to be subject to the
restrictions set forth in Sections 16, 17, and 18 hereof. If any or all
of such Company Option Shares are not sold pursuant to an Offer within
the time permitted above, the unsold Company Option Shares shall remain
subject to the terms of this Section 16 and any future proposed
transfer must again comply with the provisions set forth herein.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE.
If there shall be any change in the Common Stock of the Company through
merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination or exchange of shares, or the like,
the restrictions contained in this Section 16 shall apply with equal
force to additional and/or substitute
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securities, if any, received by the Employee in exchange for, or by
virtue of his or her ownership of, Option Shares.
(d) FAILURE TO DELIVER COMPANY OPTION SHARES.
If the Transferor fails or refuses to deliver on a timely basis duly
endorsed certificates representing Company Option Shares to be sold to
the Company or its assignee pursuant to this Section 16, the Company
shall have the right to deposit the purchase price for such Company
Option Shares in a special account with any bank or trust company in
the Commonwealth of Massachusetts, giving notice of such deposit to the
Transferor, whereupon such Company Option Shares shall be deemed to
have been purchased by the Company. All such moneys shall be held by
the bank or trust company for the benefit of the Transferor. All moneys
deposited with the bank or trust company remaining unclaimed for two
years after the date of deposit shall be repaid by the bank or trust
company to the Company on demand, and the Transferor shall thereafter
look only to the Company for payment.
(e) EXPIRATION OF COMPANY'S RIGHT OF FIRST REFUSAL.
The first refusal rights of the Company set forth in this Section 16
shall remain in effect until such time, if ever, as an underwritten
public offering is made of shares of the Company's Common Stock
pursuant to a registration statement filed under the Securities Act of
1933 or a successor statute, at which time this Section 16 and the
right of first refusal set forth herein will automatically expire.
17. COMPANY'S RIGHT OF REPURCHASE.
(a) RIGHT OF REPURCHASE.
The Company shall have the right (the "Repurchase Right") to repurchase
from the holder of an Option Shares (each a "Holder") any or all of the
Option Shares then owned by such Holder at any time by giving such
Holder a written notice (the "Repurchase Notice") at least 30 days
prior to the date of repurchase. The Repurchase Notice shall set forth
the number of Option Shares to be repurchased (the "Repurchase
Shares"), the Fair Market Value per share (determined in accordance
with Section 17(b) below as of the date of the Repurchase Notice) of
the Repurchase Shares and the date (the "Repurchase Date") on which
such Repurchase Shares are to be repurchased by the Company (such date
not to be more than 120 nor less than 30 days after the date of the
Repurchase Notice). On the Repurchase Date, the Company shall tender to
the Holder an amount equal to the number of Repurchase Shares
multiplied by the Fair Market Value per share; provided, however, that
the
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Company may pay the repurchase amount, in its sole discretion, in
accordance with the terms of a promissory note in the form attached
hereto as EXHIBIT A. The Company may assign the Repurchase Right to one
or more persons and may utilize a promissory note to effect its
Repurchase Right. Upon timely exercise of the Repurchase Right in the
manner provided in this Section 17(a), the Holder shall deliver to the
Company the stock certificate or certificates representing the
Repurchase Shares, duly endorsed and free and clear of any and all
liens, charges and encumbrances.
(b) FAIR MARKET VALUE.
For purposes of this Agreement, the Fair Market Value of an Option
Share shall be determined in good faith by the Board of Directors of
the Company after taking into account all factors including, without
limitation, the absence of an active trading market for shares of the
Common Stock, restrictions on transfer of Option Shares set forth
herein and the valuation attached to other recent issuances of
securities of the Company. If Employee disputes the Fair Market Value
so determined, Employee shall notify the Company in writing within 5
days after the Company's notice that it intends to repurchase Option
Shares under Section 16 or 17 hereof. In such event, Employee and the
Company shall in good faith choose, within 10 days after Employee's
notice, a mutually acceptable appraiser to determine the Fair Market
Value. If Employee and the Company cannot agree on such appraiser, the
appraiser shall be appointed by the American Arbitration Association in
Boston, and shall have expertise in valuing technology companies.
Within 30 days after the appointment, the appraiser shall determine the
Fair Market Value of an Option Share and deliver a written report to
the parties as to such appraisal. The appraiser's determination of Fair
Market Value of an Option Share shall be final and binding upon all
parties. The costs of the appraiser shall be borne equally by Employee
and the Company.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE.
If there shall be any change in the Common Stock of the Company through
merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination or exchange of shares, or the like,
the restrictions contained in this Section 17 shall apply with equal
force to additional and/or substitute securities, if any, received by
the Employee in exchange for, or by virtue of his or her ownership of,
Option Shares.
(d) FAILURE TO DELIVER REPURCHASE SHARES.
If the Holder fails or refuses to deliver on a timely basis duly
endorsed certificates representing the Repurchase Shares to be
repurchased by the
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Company or its assignee pursuant to this Section 17, the Company shall
have the right to deposit the repurchase price for such Repurchase
Shares in a special account with any bank or trust company in the
Commonwealth of Massachusetts, giving notice of such deposit to the
Holder, whereupon such Repurchase Shares shall be deemed to have been
purchased by the Company. All such moneys shall be held by the bank or
trust company for the benefit of the Holder. All moneys deposited with
the bank or trust company remaining unclaimed for two years after the
date of deposit shall be repaid by the bank or trust company to the
Company on demand, and the Holder shall thereafter look only to the
Company for payment.
(e) EXPIRATION OF COMPANY'S REPURCHASE RIGHT.
The Repurchase Right of the Company set forth in this Section 17 shall
remain in effect until such time, if ever, as an underwritten public
offering is made of shares of the Company's Common Stock pursuant to a
registration statement filed under the Securities Act or any successor
statute or the closing of an Acquisition as defined in the Plan, at
which time this Section 17 and the Repurchase Right set forth herein
will automatically terminate.
(f) TRANSFEREES EXCLUDED FROM FIRST REFUSAL RIGHTS.
The foregoing first refusal rights of the Company shall not apply to a
transfer by the Employee of all or any part of the Option Shares to the
Employee's spouse, children or grandchildren, or to a trust for the
benefit of any such individuals; provided, however, that prior to any
such transfer each transferee shall execute an agreement with the
Company pursuant to which the transferee agrees to be subject to the
restrictions set forth in Section 16, 17, and 18 hereof.
18. LOCK-UP AGREEMENT.
The Employee agrees that in connection with an underwritten public
offering of Common Stock, upon the request of the Company or the
managing or lead underwritten for such public offering, the Option
Shares may not be sold, offered for sale or otherwise disposed of
without the prior written consent of the Company or such underwriter,
as the case may be, for at least 180 days after the effectiveness of
the registration statement filed in connection with such offering, or
such longer period of time as the Board of Directors may determine if
all of the Company's directors and officers agree to be similarly bound
(but in no event, longer than 270 days). The lock-up agreement
established pursuant to this Section 18 shall have perpetual duration.
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19. PROVISION OF DOCUMENTATION TO EMPLOYEE.
By signing this Agreement the Employee acknowledges receipt of a copy
of this Agreement and a copy of the Plan.
20. 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 y
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 Sections 9, 16, and 17 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
Breakaway Solutions, Inc.
00 Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, XX 00000
/s/ Xxxxxxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- Name: Xxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxxxxx Title: Director of Human Resources
Print Name of Employee
Street Address
City State Zip Code
Attest:
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EXHIBIT A
FORM OF
PROMISSORY NOTE
$ , 199_
For value received, the undersigned, Breakaway Solutions, Inc., a
Delaware corporation ("Obligor"), hereby promises to pay to the order of
Xxxxxxxxxxx Xxxxxxx ("Lender") at such place as may be designated from time to
time in writing by Lender, the principal sum of ____________________ Dollars and
________ Cents ($___________________, together with interest in arrears from and
including the date hereof on the unpaid principal balance hereunder, calculated
daily, at the rate of __ percent (____%) per annum [the prime rate in effect on
the date hereof for major banks as published in the Wall Street Journal],
payable as set forth below. At the option of Lender and to the extent permitted
by applicable law, the rate of interest on any unpaid principal or interest not
paid when due and payable hereunder shall be two percent (2%) per annum above
the rate of interest set forth in the immediately preceding sentence. Interest
shall be calculated on the basis of actual number of days elapsed over a year of
360 days. Notwithstanding any other provision of this Promissory Note, Lender
does not intend to charge and Obligor shall not be required to pay any interest
or other fees or charges in excess of the maximum permitted by applicable law;
any payments in excess of such maximum shall be refunded to Obligor or credited
to reduce principal hereunder. All payments received by Lender hereunder will be
applied first to costs of collection, if any, then to interest and the balance
to principal. Principal and interest shall be payable in lawful money of the
United States of America.
Principal shall be paid in sixty (60) equal monthly installments of
__________________ Dollars and _______________ Cents ($________________) each,
commencing on ______________, 199__, and continuing on the same day of each
successive month thereafter with a final payment of all unpaid principal on
______, 199_; interest shall be paid monthly commencing on _______________,
199_, and continuing on the same day of each successive month thereafter with a
final payment of all unpaid interest at the time of payment of the principal.
If any day on which a payment is due pursuant to the terms of this
Promissory Note is not a day on which banks in the Commonwealth of Massachusetts
are generally open (a "Business Day"), such payment shall be due on the next
Business Day following.
This Promissory Note shall, at the option of the holder hereof, become
due and payable without notice or demand, upon the happening of any one of the
following specified events: (1) failure to pay any amount as herein set forth;
(2) default in the
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performance of any other obligation to Lender, which default is not cured within
thirty (30) days after written notice of such default from Lender; (3)
insolvency (however evidenced) or the commission of any act of insolvency; (4)
the making of a general assignment for the benefit of creditors; (5) the filing
of any petition or the commencement of any proceeding by Obligor or any endorser
or guarantor of this Promissory Note for any relief under any bankruptcy or
insolvency laws, or any laws relating to the relief of debtors, readjustment of
indebtedness, reorganizations, compositions, or extensions; (6) the filing of
any petition or the commencement of any proceeding against Obligor or any
endorser or guarantor of this Promissory Note for any relief under any
bankruptcy or insolvency laws, or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganizations, compositions, or extensions,
which proceeding is not dismissed within sixty (60) days; (7) suspension of the
transaction of the usual business of Obligor; or (8) the past or future making
of a false representation or warranty by Obligor in connection with any loan or
loans by Lender.
If this Promissory Note is not paid in accordance with its terms,
Obligor shall pay to Lender, in addition to principal and accrued interest
thereon, all costs of collection of the principal and accrued interest,
including, but not limited to, reasonable attorneys' fees, court costs and other
costs for the enforcement of payment of this Promissory Note.
No waiver of any obligation of Obligor under this Promissory Note shall
be effective unless it is in a writing signed by Lender. A waiver by Lender of
any right or remedy under this Promissory Note on any occasion shall not be a
bar to exercise of the same right or remedy on any subsequent occasion or of any
other right or remedy at any time.
Any notice required or permitted under this Promissory Note shall be in
writing and shall be deemed to have been given on the date of delivery, if
personally delivered to the party to whom notice is to be given, or on the fifth
business day after mailing, if mailed to the party to whom notice is to be
given, by certified mail, return receipt requested, postage prepaid, and
addressed to the addressee at the address of the addressee set forth herein, or
to the most recent address, specified by written notice, given to the sender
pursuant to this paragraph.
This Promissory Note is delivered in and shall be enforceable in
accordance with the laws of the Commonwealth of Massachusetts, and shall be
construed in accordance therewith, and shall have the effect of a sealed
instrument.
Obligor hereby expressly waives presentment, demand, and protest,
notice of demand, dishonor and nonpayment of this Promissory Note, and all other
notices or demands of any kind in connection with the delivery, acceptance,
performance, default or enforcement hereof, and hereby consents to any delays,
extensions of time,
-15-
renewals, waivers or modifications that may be granted or consented to by the
holder hereof with respect to the time of payment or any other provision hereof.
In the event any one or more of the provisions of this Promissory Notes
shall for any reason be held to be invalid, illegal or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Promissory Note operate or would prospectively operate to
invalidate this Promissory Note, then and in any such event, such provision(s)
only shall be deemed null and void and shall not affect any other provision of
this Promissory Note and the remaining provisions of this Promissory Note shall
remain operative and in full force and effect and in no way shall be affected,
prejudiced, or disturbed thereby.
OBLIGOR:
By:
---------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attested:
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
-16-
--------------------------------------------------------------------------------
Notice of Grant of Stock Options and Breakaway Solutions, Inc.
Option Agreement ID: 00-0000000
00 Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx Option Number: 00000238
00 Xxxxx Xxxxx Xxxx: 98
Xxxxxx, XX 00000 ID: 1185
--------------------------------------------------------------------------------
Effective 2/18/99 (the "Grant Date"), you (the "Employee") have been granted
a(n) Non-Qualified Stock Option 308,527 shares (the "Option Shares") of common
stock, par value $.0001 per share, of Breakaway Solution (the "Company"), at
$1.4167 per share.
The total option price of the shares granted is $437,090.20.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
--------------------- -------------------- ----------------- --------------
308,527 On Vest Date 2/18/99 2/18/09
--------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Option Plan as amended and the Option Agreement, all of
which are attached and made a part of this document.
--------------------------------------------------------------------------------
------------------------------------- ---------------------------------
Breakaway Solutions, Inc. Date
------------------------------------- ---------------------------------
Xxxxx Xxxxxxx Date
-17-
--------------------------------------------------------------------------------
Notice of Grant of Stock Options and Breakaway Solutions, Inc.
Option Agreement ID: 00-0000000
00 Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx Option Number: 00000238
00 Xxxxx Xxxxx Xxxx: 98
Xxxxxx, XX 00000 ID: 1185
--------------------------------------------------------------------------------
Effective 2/18/99 (the "Grant Date"), you (the "Employee") have been granted
a(n) Non-Qualified Stock Option 167,616 shares (the "Option Shares") of common
stock, par value $.0001 per share, of Breakaway Solution (the "Company"), at
$1.4167 per share.
The total option price of the shares granted is $237,461.59.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
------------------- -------------------- ---------------- -----------------
0 On Vest Date 2/18/00 2/18/09
167,616 Monthly 2/18/03 2/18/09
--------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Option Plan as amended and the Option Agreement, all of
which are attached and made a part of this document.
--------------------------------------------------------------------------------
----------------------------------- ------------------------------------
Breakaway Solutions, Inc. Date
----------------------------------- ------------------------------------
Xxxxx Xxxxxxx Date
-18-
