Exhibit 10.34
RESTRICTED STOCK AGREEMENT
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AGREEMENT made this 26th day of January 2000, between Breakaway
Solutions, Inc., a Delaware corporation (the "Company"), and Maureen Ellenberger
(the "Employee").
For valuable consideration, receipt of which is acknowledged, the
parties hereto agree as follows:
1. PURCHASE OF SHARES. In connection with the merger of Eggrock
Partners, Inc. ("Eggrock") with and into the Company pursuant to that certain
Agreement and Plan of Merger dated as of January 26, 2000 (the "Merger"), the
Employee will be issued shares of common stock, $0.000125 par value per share,
of the Company (the "Common Stock") in exchange for all of his/her shares of
capital stock of Eggrock in accordance with the terms of such agreement. Subject
to the consummation of the Merger, the Employee has agreed that one-half of the
shares of Common Stock received in the Merger shall be subject to the purchase
option set forth in Section 2 of this Agreement and the restrictions on transfer
set forth in Section 4 of this Agreement (the shares subject to such
restrictions, hereinafter referred to as the "Shares").
2. PURCHASE OPTION.
(a) In the event that the Employee ceases to be employed by the Company
as a result of having been terminated by the Company for Cause (as defined
below) or if the Employee terminates his/her employment for any reason other
than Good Reason (as defined below), prior to the fourth anniversary of the date
hereof, the Company shall have the right and option (the "Purchase Option") to
purchase from the Employee, for a sum of $0.50 per share divided by the "Common
Conversion Ratio" as defined in the Agreement and Plan of Merger relating to the
Merger (the "Option Price"), some or all of the Unvested Shares (as defined
below). For the purposes of this Agreement, the term "Cause" means: (1) the
Employee's substantial and continuing failure, after written notice thereof
(describing in reasonable detail such failure) and a 30-day period following the
notice to cure such failure, to perform his or her duties and responsibilities
as an employee of the Company other than due to death or disability; (2)
commission by the Employee of an action which constitutes intentional misconduct
or a knowing violation of law if such action in either event results either in
an improper substantial personal benefit or a material injury to the Company;
(3) the Employee's deliberate disregard of material rules, regulations,
instructions, personnel practices and policies of the Company (as amended from
time to time in the Company's sole discretion) which results in substantial
loss, damage or injury to the Company; (4) the Employee's failure to enter into
a, or material breach of the, Non-Disclosure, Non-Solicitation and Assignment
Agreement between the Employee and the Company attached hereto as Exhibit A; or
(5) the Employee's conviction of, or plea of guilty or nolo contendre to, any
crime which constitutes a felony in the jurisdiction involved. For the purposes
of this Agreement, the term "Good Reason means: (a) any involuntary change in
the Employee's position as Vice President, Chief Innovation Officer with the
Company; (b) the assignment to the Employee by the Board of any duties, scope of
authority or responsibilities that are materially inconsistent with the
Employee's then current status, title or position; (c) layoff or involuntary
termination of the Employee's employment, except in connection with the
termination of Employee's employment for Cause; (d) a reduction by the Company
in the Employee's base salary or bonus eligibility, other than in the case of
reductions in salary or bonus eligibility with respect to similarly situated
employees of the Company generally; (e) any action or inaction by the Company
that would adversely affect the Employee's continued participation in any
benefit plan maintained by the Company on at least as favorable a basis as was
the case at the time of such action or inaction, or that would materially reduce
the Employee's benefits in the future under any such benefit plan or deprive him
of any material benefits that he then enjoyed, except to the extent that such
action or inaction by the Company (i) is also taken or not taken, as the case
may be, in respect of covered employees generally, (ii) is required by the terms
of any such benefit plan as in effect immediately before such action or
inaction, or (iii) is necessary to comply with applicable law or to preserve the
qualification of any such benefit plan under Section 401(a) of the Internal
Revenue Code; (f) the Company's failure to obtain the express assumption of this
Agreement by any successor to the Company (including by operation of law); or
(g) a demand that the Employee work at an office that is outside of a 50-mile
radius of Concord, Massachusetts.
"Unvested Shares" means the total number of Shares multiplied by the
Applicable Percentage at the time the Purchase Option becomes exercisable by the
Company. The "Applicable Percentage" shall be (i) 100% until the first
anniversary of the date hereof, (ii) on and after the first anniversary of the
date hereof and prior to the fourth anniversary of the date hereof, 40% less
1.11% for each one month of employment completed by the Company from and after
the first anniversary of the date hereof, and (iii) zero on or after the fourth
anniversary of the date hereof.
(b) In the event that the Employee's employment with the Company is
terminated by reason of death or disability or by the Company without Cause or
if the Employee terminates his/her employment for Good Reason, the Purchase
Option shall terminate and be of no further effect, the Company shall have no
right to purchase any of the Shares and any other restrictions or conditions on
the Shares pursuant to the Agreement shall be deemed waived. For this purpose,
"disability" shall mean the inability of the Employee, due to a medical reason,
to carry out his duties as an employee of the Company for a period of six
consecutive months.
(c) For purposes of this Agreement, employment with the Company shall
include employment with a parent, subsidiary or other affiliate of the Company.
(d) Notwithstanding anything herein to the contrary, the Board of
Directors of the Company (or a duly constituted committee thereof) shall retain
the ability to accelerate the vesting schedule specified in this Section 2 at
any time in its discretion.
3. EXERCISE OF PURCHASE OPTION AND CLOSING.
(a) The Company may exercise the Purchase Option by delivering or
mailing to the Employee (or his/her estate), within 30 days after the
termination of the employment of the Employee with the Company, a written notice
of exercise of the Purchase Option. Such notice shall specify the number of
Shares to be purchased. If and to the extent the Purchase Option is not so
exercised by the giving of such a notice within such 30 day period, the Purchase
Option shall automatically expire and terminate effective upon the expiration of
such 30 day period.
(b) Within 10 business days after delivery to the Employee of the
Company's notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Employee (or his or her estate) shall, pursuant to the provisions
of the Joint Escrow Instructions referred to in Section 6, tender to the Company
at its principal offices the certificate or certificates representing the Shares
which the Company has elected to purchase in accordance with the terms of this
Agreement, duly endorsed in blank or with duly endorsed stock powers attached
thereto, all in form suitable for the transfer of such Shares to the Company.
Upon receipt of such certificate or certificates, the Company shall pay to the
Employee the aggregate Option Price for such Shares.
(c) After the time at which any Shares are required to be delivered to
the Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not pay any dividend to the Employee on account of such Shares or
permit the Employee to exercise any of the privileges or rights of a stockholder
with respect to such Shares, but shall, in so far as permitted by law, treat the
Company as the owner of such Shares. It being understood that, prior to the time
at which any Shares are required to be delivered to the Company for transfer to
the Company pursuant to subsection (b) above, the Company shall pay any and all
dividends or other distributions currently to the Employee.
(d) The Option Price may be payable, at the option of the Company, in
cancellation of all or a portion of any outstanding indebtedness of the Employee
to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon
exercise of the Purchase Option, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
4. RESTRICTIONS ON TRANSFER.
(a) The Employee shall not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of, by operation of law or otherwise, other than by will or
the laws of descent and distribution (collectively "transfer"); any Unvested
Shares, or any interest therein, that are subject to the Purchase Option, except
that the Employee may transfer such Shares to or for the benefit of any spouse,
child (natural or adopted) or grandchild, or to a trust for their benefit,
PROVIDED that such Shares shall remain subject to this Agreement (including
without limitation the restrictions on transfer set forth in this Section 4, and
the Purchase Option) and such permitted transferee shall, as a condition to such
transfer, deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, the
parties hereto acknowledge and agree that the Employee may, at any time and
without the prior consent of the Company, transfer any Shares, or any interest
therein, that are no longer subject to the Purchase Option.
5. ESCROW. The Employee shall, upon the execution of this Agreement,
execute Joint Escrow Instructions attached to this Agreement. The Joint Escrow
Instructions shall be
delivered to State Street Bank and Trust Company, as escrow agent thereunder.
The Employee hereby instructs the Company to deliver to such escrow agent, on
behalf of the Employee, the certificate(s) evidencing the Shares subject to the
Purchase Option. Such materials shall be held by such escrow agent pursuant to
the terms of such Joint Escrow Instructions.
6. RESTRICTIVE LEGENDS. All certificates representing shares subject to
the Purchase Option shall have affixed thereto legends in substantially the
following form, in addition to any other legends that may be required under
federal or state securities laws:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his or her predecessor in
interest), and such Agreement is available for inspection without
charge at the office of the Secretary of the corporation."
7. ADJUSTMENTS FOR STOCK SPLITS, STOCK DIVIDENDS, ETC.; MERGERS AND
OTHER SALE EVENTS.
(a) If from time to time there is any stock split, stock dividend,
stock distribution or other reclassification of the Common Stock of the Company,
any and all new, substituted or additional securities to which the Employee is
entitled by reason of his ownership of the Unvested Shares shall be immediately
subject to the Purchase Option, the restrictions on transfer and the other
provisions of this Agreement in the same manner and to the same extent as the
Unvested Shares, and the Option Price shall be appropriately adjusted.
(b) In the case of and subject to the consummation of (i) the
dissolution or liquidation of the Company, (ii) the sale of all or substantially
all of the assets of the Company on a consolidated basis to an unrelated person
or entity, (iii) a merger, reorganization or consolidation in which the holders
of the Company's outstanding voting power immediately prior to such transaction
do not own a majority of the outstanding voting power of the surviving or
resulting entity immediately upon completion of such transaction, (iv) the sale
of all of the capital stock of the Company to an unrelated person or entity, or
(v) any other transaction in which the owners of the Company's outstanding
voting power prior to such transaction do not own at least a majority of the
outstanding voting power of the relevant entity after the transaction (in each
case, regardless of the form thereof, a "Sale Event"), all Unvested Shares as of
the effective date of the Sale Event shall automatically become vested as of
such date, the Purchase Option shall be deemed terminated and of no further
effect and any other restrictions or conditions on the Shares pursuant to this
Agreement shall be deemed waived.
8. REGISTERED NATURE OF ISSUANCE OF THE SHARES. The parties hereto
covenant and agree that the Shares will be issued to the Employee in a
transaction registered pursuant to Section 5 of the Securities Act of 1933, as
amended.
9. SECTION 83(b) ELECTION. The Employee acknowledges that he has been
informed of the availability of making an election in accordance with 83(b) of
the Internal Revenue Code of 1986, as amended; that such election must be filed
with the Internal Revenue Service within 30 days of the transfer of shares to
the Employee; and that the Employee is solely responsible for
making such election. The Company agrees to take all reasonable actions to
assist the Employee in determining an appropriate valuation of the Shares for
purposes of filing such election, including without limitation providing access
to any information useful in determining such valuation.
10. NO RIGHTS TO EMPLOYMENT. Nothing contained in this Agreement shall
be construed as giving the Employee any right to be retained, in any position,
as an employee of the Company.
11. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
12. WAIVER. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors of the Company.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Company and the Employee and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Sections 4 and 5 of this
Agreement.
14. NOTICE. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage fees prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other by 10 days
advance written notice in accordance with this Section 14.
15. PRONOUNS. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
16. ENTIRE AGREEMENT. This Agreement and the Joint Escrow Instructions
attached hereto constitute the entire agreement between the parties, and
supersede all prior agreements and understandings, relating to the subject
matter of this Agreement.
17. AMENDMENT. This Agreement and the Joint Escrow Instructions
attached hereto may be amended or modified only by a written instrument executed
by both the Company and the Employee (and with respect to the Joint Escrow
Instructions only, with the consent of the Escrow Agent).
18. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the State of Delaware without
regard to any applicable conflicts of laws.
19. EFFECTIVENESS. This Agreement shall be effective upon the closing
of the Merger, provided that this Agreement shall be of no force and effect if
the Agreement and Plan of Merger is terminated in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BREAKAWAY SOLUTIONS, INC.
By: /s/ Gordon Brooks
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Name: Gordon Brooks
Title: President and Chief
Executive Officer
Address: 50 Rowes Wharf
Boston, MA 02110
Maureen Ellenberger
/s/ Maureen Ellenberger
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Address: