EXHIBIT 10.26
BREAKAWAY SOLUTIONS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
BREAKAWAY SOLUTIONS, INC. (the "Company") hereby grants this 11th day of
December, 1998 (the "Grant Date") to Gordon Brooks (the "Employee"), an option
to purchase a maximum of three hundred eighty two thousand three hundred
thirteen (382,313) shares (the "Option Shares") of the Company's Common Stock,
par value $.0001 per share ("Common Stock") at the price of four dollars and
twenty-five cents ($4.25) 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
Plan as 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 hereinbelow provided:
(a) ACHIEVING TARGET AMOUNTS.
(1) Ninety five thousand five hundred seventy eight (95,578) shares shall
become vested upon the Company obtaining a Valuation (as defined below) of
one hundred million dollars ($100,000,000), or such higher Target Amount
(as defined below) as may be required pursuant to the provisions set forth
below;
(2) An additional ninety five thousand five hundred seventy eight (95,578)
shares shall become vested upon the Company obtaining a Valuation of one
hundred fifty million dollars ($150,000,000), or such higher Target Amount
(as defined below) as may be required pursuant to the provisions set forth
below;
(3) An additional ninety five thousand five hundred seventy eight (95,578)
shares shall become vested upon the Company obtaining a Valuation of two
hundred million dollars ($200,000,000), or such higher Target Amount (as
defined below) as may be required pursuant to the provisions set forth
below;
(4) An additional ninety five thousand five hundred seventy eight (95,578)
shares shall become vested upon the Company obtaining a Valuation of two
hundred fifty million dollars ($250,000,000), or such higher Target Amount
(as defined below) as may be required pursuant to the provisions set forth
below.
Each of the foregoing Valuation amounts in Paragraphs (1) through (4) of
this Subsection (a) are referred to for purposes hereof as a "Target
Amount." Any increase in the value of the Company (and which increase is
reflected in a Valuation, as hereinbelow provided) which is directly caused
by or related to an investment in the Company or the merger into the
Company, or acquisition by the Company of another business entity shall
cause an increase in each Target Amount which has not yet been achieved as
of the date of such investment, merger or acquisition equal to the increase
in value caused by such investment, merger or acquisition.
A determination as to the current Valuation of the Company shall be made
(i) on an annual basis within ninety (90) days after the end of the
Company's fiscal year, (ii) effective upon the consummation by the Company
of any future financing and (iii) promptly following any other event which
involves the obtaining by the Company of an independent valuation of the
Company. "Valuation" means (1) in the case of clause (i) of the preceding
sentence, a valuation mutually agreed upon by the Employee and the Board of
Directors, or if a mutually agreement cannot be reached, a written
determination of the valuation of the Company prepared by an independent
investment banking firm or appraisal company which is of national or
regional reputation and which is mutually acceptable to the Company and to
the Employee and which valuation is prepared on a basis consistent with
valuation methods typically used by venture capitalists or investment
bankers to value a business in the same industry and stage of development
as the Company (it being agreed that such valuation shall not be based on
book value or liquidation value), (2) with respect to clause (ii) of the
preceding sentence, the valuation of the Company in connection with such
financing and (3) with respect to clause (iii) of the preceding sentence,
the independently prepared valuation referred to therein.
(b) TRIGGERING EVENT.
If a Triggering Event, as defined below:
(1) Occurs within twelve (12) months of the Grant Date, ninety five
thousand five hundred seventy eight (95,578) unvested shares (or, if fewer,
all unvested shares) shall immediately become vested;
(2) Occurs between twelve (12) months and twenty-four (24) months of the
Grant Date, one hundred ninety one thousand one hundred fifty six (191,156)
unvested shares (or, if fewer, all unvested shares) shall immediately
become vested;
(3) Occurs between twenty-four (24) months and thirty-six (36) months of
the Grant Date, two hundred eighty six thousand seven hundred thirty five
(286,735) unvested shares (or, if fewer, all unvested shares) shall
immediately become vested; and
(4) Occurs thirty-six (36) months or later after the Grant Date, all
unvested shares shall
immediately become vested.
For purposes hereof, a "Triggering Event" is the occurrence of any of the
following events: (a) a sale of all or substantially all of the Company's
assets or all or substantially all of the shares of its capital stock, (b)
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, (c) 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 (d) the liquidation or
dissolution of the Company. In addition, if the Company or stockholders of
the Company enter into an agreement with respect to any of the foregoing
events, then upon the consummation of such event a Triggering Event shall
be deemed to have occurred upon the date of such agreement and, regardless
of whether the option remains outstanding on the date of consummation of
the Triggering Event, the Employee will be entitled to exercise the option
to the extent the Employee would have been eligible to do so if a
Triggering Event had occurred on the date the agreement was entered into
(and in any event, for a period of at least 30 days after the consummation
of such event).
(c) CONTINUED EMPLOYMENT FOR SEVEN YEARS.
All unvested Option Shares shall become vested on the seventh (7th)
anniversary of the Grant Date.
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 or termination for Cause as defined in Section 4(c), this option
shall continue to vest as set forth in Section 3 for sixty (60) days after
the date Employee ceases to be employed by the Company or any Related
Corporation. This option shall terminate on the earlier of (i) ninety (90)
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)), 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.
(c) DEFINITION OF CAUSE.
"Cause" shall mean that the Employee is terminated for one or more of the
following reasons: (i) the Employee's commission of any act of embezzlement
or fraud; or (ii) the Employee's conviction of a felony.
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 which is sixty (60) days after 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) two
hundred seventy (270) 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 which is sixty (60)
days from the date of termination of employment, until the earlier of (i)
the Expiration Date or (ii) two hundred seventy (270) days from the date of
the termination of the Employee's employment.
(c) EFFECT OF TERMINATION.
At the expiration of the two hundred seventy (270) 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 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 sale 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 part 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
office, 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 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 RIGHTS 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 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 making of a Disqualifying Disposition (as defined in Paragraph
18 of the Plan), 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 forth 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 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 thirty (30) days
after receipt of the Option Notice, a written counter-notice to the
Transferor (the "Counter-Notice"). If the Company elects to purchase 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 per share price (and,
except as set forth below, on the same terms) indicated in the Offer,
within thirty (30) days of the date of delivery by the Company of the
Counter-Notice. If the Company elects to purchase 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 thirty
(30)-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
thirty (30) 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, 18 and 20
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 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 or the
closing of an Acquisition as defined in the Plan, 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 any 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 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.
"Fair Market Value per Option Share" shall mean the Valuation of the
Company (as defined in Section 3(a)) divided by the number of shares of
Common Stock equivalents (including, without limitation, preferred stock
convertible into common stock, warrants to purchase common stock and vested
options) then outstanding.
(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
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) TRANSFERS 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
Sections 16, 17, 18 and 20 hereof.
18. LOCK-UP AGREEMENT.
The Employee agrees that in connection with the Company's first
underwritten public offering of Common Stock, upon the request of the
Company or the managing or lead underwriter 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.
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. SUBCHAPTER S RESTRICTIONS.
Anything in this Agreement to the contrary notwithstanding, including,
without limitation, Sections 16 and 17 hereof, the Employee shall not
exercise this option or sell, assign, transfer or convey or otherwise
dispose of any Option Shares, whether by will, by the laws of descent and
distribution, by operation of law or otherwise, including, without
limitation, under Sections 16 or 17 hereof, to any person or entity, if
such exercise or transfer will or may reasonably be expected to result in a
termination of the Company's subchapter S election under Section 1362 of
the Code (pursuant to Sections 1361 and 1362 of the Code or any successor
provision thereto). Any exercise of this option or transfer of Option
Shares in violation of the restrictions on exercise and transfer contained
herein or resulting in termination of the Company's subchapter S election
in violation of the terms of this Agreement shall be null and void and of
no effect whatsoever and shall not entitle the Employee or any proposed
transferee, assignee or other person to have any Option Shares issued to
them or transferred upon the books of the Company. Furthermore, the
Employee will not take any other action which would result in the
termination of the Company's subchapter S election. For purposes of this
section 20, the term Employee includes any successor transferee of the
Option Shares. The provisions of this Section 20 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 termination
of the Company's status as an S-Corp, at which time this Section 20 and the
restrictions set forth herein will automatically terminate.
21. 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 by 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, 17, and 20 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]
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.
50 Rowes Wharf
6th Floor
Boston, MA 02110
/S/ GORDON BROOKS
- ---------------------------
Employee
GORDON BROOKS By: /S/ SAM SPECTOR
- --------------------------- --------------------------------
Print Name of Employee Name: Sam Spector
Title: Director of Human Resources
20 GILSON ROAD
- ---------------------------
Street Address
WELLESLEY, MA 02481
- ---------------------------------
City State Zip Code
Attest: /S/ SAM SPECTOR
--------------------------
EXHIBIT A
FORM OF
PROMISSORY NOTE
$_____________ _________ __, 199_
For value received, the undersigned, Breakaway Solutions, Inc., a
Delaware corporation ("Obligor"), hereby promises to pay to the order of Gordon
Brooks ("Lender") at such place as may be designated from time to time in
writing by Lender, the principal sum of ___________ Dollars and ______ Cents
($_________) : ____ 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 may be prepaid at any time, without premium or
penalty, in whole or in part, all such prepayments to be applied upon
installments of most remote maturity. Any prepayment of principal shall be
accompanied by a payment of accrued interest in respect of the principal being
prepaid.
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 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, 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 Note
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:
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Name:
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Title:
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Attested:
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By:
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Name:
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Title:
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