EXHIBIT 10.14
CONFIDENTIAL
SEPARATION AGREEMENT
This Separation Agreement ("Agreement"), dated as of April 28, 1999, is by
and between Frank Selldorff, an individual ("Selldorff"), and Breakaway
Solutions, Inc., a Delaware corporation ("Company").
WHEREAS, Selldorff has been affiliated with the Company as a member of the
Board of Directors of the Company and its Executive Vice President, and
WHEREAS, Selldorff's employment relationship with the Company is currently
governed by the terms of an employment agreement dated December 11, 1999 between
Selldorff and the Company (the "Employment Agreement"), and
WHEREAS, Selldorff and the Company desire to amend certain provisions of
the Employment Agreement, and
WHEREAS, Selldorff desires to resign from all his positions with the
Company on the terms set forth below.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
Company and Selldorff (collectively referred to as "the Parties") hereby agree
as follows:
1. AMENDMENT OF EMPLOYMENT AGREEMENT; WAIVER OF SEVERANCE PAYMENT. In
consideration of the mutual releases granted herein and other good and valuable
consideration received, section 5(b) of the Employment Agreement is hereby
amended by striking the phrase "sixtieth (60th) day" which appears in the third
line thereof and inserting in lieu thereof the phrase "one hundred eightieth
(180th) day." Selldorff acknowledges and agrees that the foregoing amendment to
the Employment Agreement shall have the effect of Selldorff waiving the
Severance Payment (as defined in the Employment Agreement) to which he would
otherwise be entitled upon his voluntary termination of employment with the
Company. Selldorff shall return to the Company all physical Company property in
his possession, custody or control at a mutually agreed to date but shall make
an accounting of such property in writing within 14 days of his execution of
this Agreement.
2. RESIGNATION. Selldorff hereby resigns from his positions with the
Company as an officer and employee (but not as a director), effective as of the
execution of this Agreement. Selldorff acknowledges and agrees that his
resignation is his voluntary act for all purposes, including, without
limitation, for purposes of the Employment Agreement.
3. NON-SOLICITATION AND NON-COMPETITION. The Parties agree that,
notwithstanding any other provision of this Agreement or the Employment
Agreement to the contrary, the provisions of Section 4 of the Employment
Agreement shall survive the execution of this Agreement and shall continue in
full force and effect. The Company agrees and acknowledges that Selldorff's
operation of The Orion Companies (and its affiliates) will not constitute a
breach of the provisions of section 4.
4. CONFIDENTIAL INFORMATION. Selldorff shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company,
including, but not limited to, non-public information regarding the Company's
business, marketing strategies, personnel, and finances. Selldorff shall return
all Company property and confidential and proprietary information in his
possession to the Company by May 15, 1999. This Agreement shall be confidential
unless otherwise required by law.
5. RELEASE OF CLAIMS. Selldorff agrees that this Agreement represents
settlement in full of all outstanding obligations owed to Selldorff by Company.
Selldorff and the Company, on behalf of themselves, and their respective heirs,
executors, officer, directors, employees, agents, investors, shareholder,
administrators, predecessor and successor corporations, and assigns, hereby
fully and forever release each other and their respective heirs, executors,
officers, directors, employees, agents, investors, shareholders, administrators,
predecessor and successor corporations, and assigns, of and from any claim,
duty, obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred including,
without limitation:
a. any and all claims relating to or arising from Selldorffs
positions, termination or resignation as provided above.
b. any and all claims relating to, or arising from, Selldorffs right
to purchase, or actual purchase of shares of stock of the Company, provided,
however, that any vested options to purchase Company Common Stock shall be
exercisable in accordance with their terms and, if not exercised by the dates
provided for therein, shall terminate thereafter and shall become null and void,
and this Agreement shall not in any way amend or modify any option agreements
between Selldorff and The Company.
c. any and all claims for wrongful discharge of employment; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
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d. any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of
1967, the Americans with Disabilities Act of 1990, and M.G.L.C. 151B;
e. any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
f. any and all claims for attorneys' fees and costs.
The Company and Selldorff agree that the release set forth in this section shall
be and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations incurred under
this Agreement
6. CONFIDENTIALITY. The Parties hereto each agree to use its best efforts
to maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). Each party hereto agrees
to take every reasonable precaution to prevent disclosure of any Settlement
Information to third parties, and each agrees that there will be no publicity,
directly or indirectly, concerning any Settlement Information unless mutually
agreed to by both Parties or required to comply with governmental orders, laws
or regulations (including Proxy Statement, financial and similar information
requirements). The Parties hereto agree to take every precaution to disclose
Settlement Information only to those employees, officers, directors, attorneys,
accountants, governmental entities, and family members who have a reasonable
need to know of such Settlement Information.
7. NON-DISPARAGEMENT. Each party agrees to refrain from any disparagement,
criticism, defamation, slander of the other, or tortuous interference with the
contracts and relationships of the other.
8. INDEMNIFICATION. The Company shall indemnify Selldorff to the maximum
extent permitted under the Company's By-laws, the Delaware General Corporation
Law, directors' and officers' liability insurance and any indemnification
agreement between the Company and Selldorff. The provisions of this Section
shall inure to the benefit of Selldorff's estate, executor, administrator,
heirs, legatees or devisees. Nothing in this Agreement shall release the Company
from any such duty to indemnify Selldorff for any and all actions, decisions or
conduct by Selldorff in his role as a director of the Company.
9. TAX CONSEQUENCES. The Company makes no representations or warranties
with respect to the tax consequences of this Agreement. Selldorff agrees and
understands that he is responsible for payment, if any, of local, state and/or
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federal income taxes on any sums paid by the Company and any penalties or
assessments thereon. Selldorff further agrees to indemnify and hold the Company
harmless from any claims, demands, deficiencies, penalties, assessments,
executions, judgments, or recoveries by any government agency against the
Company for any amounts claimed due on account of Selldorff's failure to pay
federal or state income taxes or damages sustained by the Company by reason of
any such claims, including reasonable attorneys' fees.
10. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
11. AUTHORITY. The Company represents and warrants that it has the
authority to enter into this Agreement. Selldorff represents and warrants that
he has the capacity to act on his own behalf and on behalf of all who might
claim through him to bind them to the terms and conditions of this Agreement.
Each Party represents and warrants that there are no liens or claims of lien or
assignments in law or equity or otherwise on or against any of the claims or
causes of action released herein.
12. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
13. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
14. ENTIRE AGREEMENT. This Agreement, the Employment Agreement (as amended
by this Agreement) and any option agreements between Selldorff and The Company
represent the entire agreement and understanding between the Company and
Selldorff concerning Selldorff's separation from the Company, and supersedes and
replaces any and all prior agreements and understandings concerning Selldorff's
relationship with the Company and his compensation by the Company.
15. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Selldorff and the Chairman of the Board of the Company.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts. The parties consent to jurisdiction of any
dispute arising under this Agreement or the matters referred to herein of the
courts located in Suffolk County, Massachusetts. This agreement is effective
when executed by both Parties.
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17. COUNTERPARTS. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the pan of each of the
undersigned.
18. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part of or on
behalf of the Parties hereto, with the full intent of releasing all claims. The
Parties acknowledge that:
a. They have read this Agreement;
b. They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
c. They understand the terms and consequences of this Agreement and of
the releases it contains;
d. They are fully aware of the legal and binding effect of this
Agreement.
19. SUCCESSORS. This Agreement, and the respective rights and obligations
of the Parties hereunder, shall inure to the benefit of, and be binding upon,
their respective successors, assigns and legal representatives. This provision
with respect Selldorff's right of successorship shall, however, inure only to
the benefit of Selldorff's estate, executor, administrator, heirs, legatees or
devisees.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
BREAKAWAY SOLUTIONS, INC.,
a Delaware corporation
Dated: 5/13/99 By:/S/ GORDON BROOKS
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Gordon Brooks
CEO
FRANK SELLDORFF, an individual
Dated: 5/13/99 By:/S/ FRANK SELLDORFF
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