EXHIBIT 10.55
EMPLOYMENT SEPARATION AGREEMENT
This Employment Separation Agreement (the "Agreement") is entered into
by Breakaway Solutions, Inc. (the "Company"), and Xxxxxx X. Xxxxxx ("Employee"
or "you").
WHEREAS, the Company wishes to provide certain separation consideration
in return for a release from liabilities of Employee; and
WHEREAS, Employee and the Company would like to formalize their
agreement regarding the termination of their relationship;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, which covenants and agreements
constitute good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Employee agrees as follows:
1. TERMINATION AS CEO. Your engagement as the Chief Executive Officer
of the Company will terminate as of April 6, 2001. It is expected that you will
cooperate with the Company to achieve an orderly transition of the chief
executive office of the Company. You will be paid all wages at your existing
rate earned as of April 6, 2001. You also shall continue as an employee of the
Company until April 6, 2002 (the "Termination Date") and agree to make yourself
available for consultation on the business of the Company at reasonable times
and upon reasonable notice (not to exceed five (5) hours per month) prior to the
Termination Date. In consideration for the other agreements set forth herein,
Employee hereby agrees to waive the severance he would otherwise be entitled to
under the terms of his Employment Agreement, but will continue to receive his
existing benefits at a cost to the Company not to exceed ten thousand dollars
($10,000) in the aggregate until the Termination Date. Other than as expressly
provided above, no payments will be due or made to Employee for salary, bonus,
commissions, consulting, benefits, severance, vacation, personal days or
otherwise.
2. MUTUAL GENERAL RELEASES. In exchange for the consideration described
herein, each of Employee and the Company agree to release and discharge one
another and affiliates, parent companies, subsidiaries, predecessors,
successors, related entities, insurers, warrantholders, consultants of
shareholders and warrantholders and assigns of each of them, and the current and
former officers, directors, shareholders, partners, principals, employees and
agents of each of the foregoing (any and all of which are referred to as
"Releasees") generally from all charges, complaints, claims, promises,
agreements, causes of action, damages, and debts of any nature whatsoever, known
or unknown ("Claims"), which either party have, claim to have, ever had, or ever
claimed to have had against Releasees up through the date of execution of this
Agreement, including but not limited to any Claims under the common law or any
statute. You also waive any Claim for reinstatement, attorneys' fees, or costs.
3. CERTAIN TRANSITION MATTERS. You expressly agree to cooperate with
the Company in transferring all information on business matters handled by you
during your engagement as Chief Executive Officer of the Company. You further
warrant to the Company that you have not incurred and will not incur any
unauthorized credit card charges or other liabilities of any nature for which
the Company may be liable. It is expressly understood and agreed that you will
be reimbursed for all charges incurred by you on behalf of the Company in the
ordinary course of business through the date of termination of your employment,
but not thereafter.
4. NON-SOLICITATION. You hereby acknowledge and expressly agree that
you previously executed an Employment Agreement with the Company, which is
attached hereto as APPENDIX A. The provisions of Section 4 of this Employment
Agreement dealing with Employee's non-solicitation of Company employees and
customers is hereby incorporated by reference.
5. RETIREMENT OF LOAN. Employee currently has outstanding a loan (the
"Employee Loan") in the original principal amount of one million dollars
($1,000,000) plus accrued interest. The Company hereby agrees that as long as
Employee has fulfilled his obligations pursuant to Section 1 hereof and
satisfied his federal and state income tax withholding obligations with respect
to the Employee Loan by payment to the Company of such amounts in cash if so
requested by the Company, on the Termination Date, the Company shall retire in
all respects the Employee Loan, and Employee shall have no further obligations
with respect thereto. The Company agrees that it shall return to Employee the
original promissory note evidencing the Employee Loan marked "paid."
6. EXTENSION OF COMPANY OPTIONS. In the event Employee is terminated
before the Termination Date, the Company would agree to extend the exercise
period for Employee's existing non-statutory stock option grants with respect to
three hundred thousand (300,000) shares initially granted to him which are fully
vested (the "Extended Options") by allowing Employee to exercise the Extended
Options at any time until the Termination Date. Employee agrees to forfeit
promptly after the execution of this Agreement all stock options granted by the
Company except for such 300,000 shares.
7. CONTINUATION OF VOICEMAIL AND E-MAIL. The Company agrees that it
shall continue and provide Employee with access to his voicemail for a period of
six (6) months and e-mail for a period of three (3) months.
8. PERSONAL PROPERTY. Employee shall have the right to retain at no
cost to him his laptop computer, mobile phone and Blackberry.
9. BINDING EFFECT. This Agreement is binding upon you and your heirs,
administrators, representatives, executors, successors and assigns, and will
inure to the benefit of you and each of your heirs, administrators,
representatives, executors, successors and assigns and to the benefit of the
Company and each of its successors and assigns.
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10. CONFIDENTIALITY. You agree to maintain the confidentiality of the
terms and conditions of this Agreement; however, nothing contained in this
Agreement shall prevent disclosures required by law or otherwise limit the
proceedings of any governmental agency or limit your access to such governmental
agencies. The parties agree to generate a mutually acceptable press release with
respect to the subject matter hereof. Also, nothing in this paragraph shall
prevent you from disclosing the terms of the Agreement to your immediate family
members and professional advisors who shall likewise agree to keep these matters
confidential.
11. NON-DISPARAGEMENT. Except as required by law, you agree not to make
any statement, written or oral, which in any way disparages the Company or its
products or services, or any of its directors, officers, employees, or agents.
Except as required by law, the Company agrees not to make any statement, written
or oral, which in any way disparages Employee.
12. ENTIRE AGREEMENT. This letter sets forth the entire agreement
between you and the Company and supersedes any and all prior agreements,
covenants, promises and understandings, whether oral or written.
13. ADVICE OF COUNSEL. You hereby agree that (i) you have carefully
read and understand all the provisions of this Agreement; (ii) you have had the
opportunity to seek the advice of counsel and (iii) you are voluntarily entering
into this Agreement and have not relied upon any representation or statement,
written or oral, not contained herein. If this Agreement is acceptable to you,
please indicate your understanding and acceptance of its terms by signing and
dating this letter in the space provided below and returning it to the Company.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written below.
BREAKAWAY SOLUTIONS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx
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APPENDIX A
EMPLOYMENT AGREEMENT
