Exhibit 10.41
PROMISSORY NOTE
February 6, 2000
$1,000,000 Boston, Massachusetts
FOR VALUE RECEIVED, Gordon Brooks (the "MAKER"), promises to pay to Breakaway
Solutions, Inc. (the "Company"), or order, at the offices of the Company or at
such other place as the holder of this Note may designate, the principal sum of
$1,000,000, together with interest on the unpaid principal balance of this Note
from time to time outstanding at the rate of 6.21% per year until paid in full.
All principal and interest under this Note shall be due and payable in full on
the first to occur of (i) the date 30 days subsequent to the date the Maker
ceases to be employed by the Company and (ii) February 15, 2003.
Interest on this Note shall be computed on the basis of a year of 365 days for
the actual number of days elapsed. All payments by the Maker under this Note
shall be in immediately available funds.
This Note shall become immediately due and payable without notice or demand upon
the occurrence at any time of any of the following events of default
(individually, on "Event of Default" and collectively, "Events of Default");
PROVIDED, THAT, solely with respect to clause (b) below, no Event of Default
shall be deemed to have occurred until the date six months after the first
occurrence of the event(s) described in such clause (b):
(a) If the Maker is not paying his debts as they become due,
becomes insolvent, files a petition under any chapter of the
United States Bankruptcy Code, 11 U.S.C. Section 101 ET SEQ.
(or any similar petition under any insolvency law of any
jurisdiction), has filed against him a petition under any
chapter of the United States Bankruptcy Code, 11 U.S.C.
Section 101 ET SEQ. (or any similar petition under any
insolvency law of any jurisdiction) not dismissed within
90 days, proposes any liquidation, composition or financial
reorganization with his creditors, makes an assignment or
trust mortgage for the benefit of creditors, or if a
receiver, trustee, custodian or similar agent is appointed
or takes possession with respect to any property or business
of the Maker;
(b) If the Maker dies or becomes incapacitated, or if a
conservator or guardian of the Maker is appointed, or if the
Maker suffers any other legal disability;
(c) Default in the payment or performance of this or any other
liability or obligation of the Maker to the holder,
including the payment when due of
any principal, premium or interest under this Note; or
(d) If the Maker violates the non competition, non-solicitation
or confidentiality provisions of any employment or other
agreement between the Maker and the holder.
Upon the occurrence of an Event of Default, the holder shall have then, or at
any time thereafter, all of the rights and remedies afforded by the Uniform
Commercial Code as from time to time in effect in the Commonwealth of
Massachusetts or afforded by other applicable law.
Every amount overdue under this Note shall bear interest from and after the date
on which such amount first became overdue at an annual rate which is two (2)
percentage points above the rate per year specified in the first paragraph of
this Note. Such interest on overdue amounts under this Note shall be payable on
demand and shall accrue and be compounded monthly until the obligation of the
Maker with respect to the payment of such interest has been discharged (whether
before or after judgment).
In no event shall any interest charged, collected or reserved under this Note
exceed the maximum rate then permitted by applicable law and if any such payment
is paid by the Maker, then such excess sum shall be credited by the holder as a
payment of principal.
All payments by the Maker under this Note shall be made without set-off or
counterclaim and be free and clear and without any deduction or withholding for
any taxes or fees of any nature whatever, unless the obligation to make such
deduction or withholding is imposed by law. The Maker shall pay and save the
holder harmless from all liabilities with respect to or resulting from any delay
or omission to make any such deduction or withholding required by law.
Whenever any amount is paid under this Note, all or part of the amount paid may
be applied to principal, premium or interest in such order and manner as shall
be determined by the holder in its discretion.
No reference in this Note to the Security Agreement shall impair the obligation
of the Maker, which is absolute and unconditional, to pay all amounts under this
Note strictly in accordance with the terms of this Note.
The Maker agrees to pay on demand all costs of collection, including reasonable
attorneys' fees, incurred by the holder in enforcing the obligations of the
Maker under this Note.
No delay or omission on the part of the holder in exercising any right under
this Note shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. The
Maker and every indorser or guarantor of this Note regardless of the time, order
or place of signing waives presentment, demand, protest and notices of every
kind and assents to any extension or postponement of the time of payment or any
other indulgence, to any substitution, exchange or release of collateral, and to
the addition or release of any other party or person primarily or secondarily
liable.
This Note may be prepaid in whole or in part at any time or from time to time.
Any such prepayment shall be without premium or penalty.
None of the terms or provisions of this Note may be excluded, modified or
amended except by a written instrument duly executed on behalf of the holder
expressly referring to this Note and setting forth the provision so excluded,
modified or amended.
All rights and obligations hereunder shall be governed by the laws of the
Commonwealth of Massachusetts and this Note is executed as an instrument under
seal.
ATTEST: MAKER:
Kevin Comerford /s/ Gordon Brooks
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Print Name: Kevin Comerford Gordon Brooks