EXHIBIT 10.9
BREAKAWAY SOLUTIONS, INC.
March 25, 1999
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Dev:
Breakaway Solutions, Inc. (the "Company") is pleased to offer you the
position of Vice President and General Manager of the Company's ASP Service Line
(the "Position") subject to the terms and conditions set forth in this letter
agreement ("Agreement"). In consideration of the mutual agreements set forth
below, you and the Company agree to the following:
1. EFFECTIVE DATE; TERM: EFFECT OF TERMINATION OF THIS AGREEMENT.
a. EFFECTIVE DATE. This Agreement shall be effective on the date set
forth above (such date being referred to as the "Effective Date") and shall
continue until your employment with the Company is terminated. In connection
with your execution of this Agreement you agree that upon request of the Company
you shall provide proof of your legal right to work in the United States as
required by the U.S. Immigration and Naturalization Service. If you are not a
U.S. citizen or U.S. permanent resident, you will be required either to sign an
assurance regarding obligations not to export technical data or software to
certain countries, or comply with the requirements of subsection 6(a) below to
the extent applicable to you.
b. EFFECT OF TERMINATION OF THIS AGREEMENT. Termination of your
employment with the Company shall terminate this Agreement. Following
termination of this Agreement, this Agreement shall become null and void and no
party hereto (or any of their respective directors, officers or employees) shall
have any liability or further obligation to any other party hereto under this
Agreement, except as provided in Sections 3, 4, 5 and 6 of this Agreement, each
of which provisions shall survive termination of this Agreement. Nothing
contained in this Section 1 shall relieve any party from liability for any
breach of this Agreement occurring prior to any termination.
2. POSITION, DUTIES AND DURATION OF ASSIGNMENT. You will serve in the
Position with such duties and responsibilities that exist as of the Effective
Date, and/or as may later be reasonably assigned by the Chief Executive Officer,
and as are commensurate with the duties and responsibilities of Vice President
and General Manager of product lines
of companies that are of comparable size and in comparable industries to the
Company. You will report to the Chief Executive Officer. You will devote all of
your business time, skill, attention and best efforts to the Company's business
and to discharge and fulfill the responsibilities assigned to you by the Company
during your employment. You shall not render services to any other person or
entity without the prior written consent of the Company, and you shall not
engage in any activity which conflicts or interferes with the performance of the
duties and responsibilities of the Position.
3. COMPENSATION AND BENEFITS.
a. SALARY. During your employment you will receive a base salary of
$15,833.33 per month paid in accordance with the Company's normal payroll
practice. The Company will make such deductions, withholdings and other payments
from sums payable pursuant to this Agreement which are required by law for taxes
and other charges, or which you request pursuant to payroll deductions chosen by
you. In the event of your death, the Company will make all salary payments which
are accrued and not yet paid as of the date of your death to your legal
representative. All dollar amounts stated in this and all other Sections of this
Agreement refer to United States currency.
b. BONUS. At the end of the fiscal year, you will be eligible to
receive a bonus of up to 30% of annual salary contingent on the Company
achieving specified profit targets. Additional bonuses may be established by the
Chief Executive Officer.
c. BENEFITS. You will be entitled to participate in or receive such
benefits under the Company's employee benefit plans and policies and such other
benefits which may be made available as in effect from time to time and as are
provided to officers of the Company. The Company may change, amend, modify or
completely eliminate any benefit plan from time to time.
d. BUSINESS EXPENSES. You will be entitled to reimbursement for
necessary and reasonable business expenses incurred by you in your employment
with the Company in accordance with accounting procedures as the Company shall
adopt from time to time.
e. VACATION/HOLIDAYS. During your employment under this Agreement you
will be entitled to four weeks paid vacation, accrued in accordance with Company
policies, and Company holidays in accordance with the Company's holiday
policies, as they may be amended from time to time.
f. RECEIPT OF DOCUMENTATION. You acknowledge that you have received
from the Company copies of the Company's benefits plans. You understand and
agree that the Company has reserved the right and option, in its sole
discretion, to change,
-2-
interpret or modify these and all other plans or policies at any time in
accordance with the terms of the respective plans or policies.
4. RESTRICTIONS AND CONDITIONS.
As an express condition of this Agreement and your continued employment
with the Company, you agree to comply with the agreements and other conditions
in this Section.
a. AGREEMENT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. While employed
by the Company and thereafter, you shall not, directly or indirectly, use any
Confidential Information (as hereinafter defined) other than pursuant to your
employment by and for the benefit of the Company, or disclose to anyone outside
of the Company any such Confidential Information. The term "Confidential
Information" as used throughout this Agreement shall mean all trade secrets,
proprietary information, inventions and developments, including customer lists,
business plans, and all other data or information (and any tangible evidence,
record or representation thereof), whether prepared, conceived or developed by
an employee of the Company (including you) or received by the Company from an
outside source, which is in the possession of the Company and which is
maintained in confidence by the Company or which might permit the Company or its
clients or customers (hereinafter collectively referred to as "Clients") to
obtain a competitive advantage over competitors who do not have access to such
trade secrets, proprietary information, or other data or information. This
provision does not apply to any Confidential Information that the Company has
voluntarily disclosed to the public or that has otherwise legally entered the
public domain. You understand that the Company from time to time has in its
possession information which is claimed by others to be proprietary and which
the Company has agreed to keep confidential. You agree that all such information
shall be Confidential Information for purposes of this Agreement.
b. ASSIGNMENT OF DEVELOPMENTS. You agree that all Confidential
Information and all other discoveries, inventions, ideas, designs, concepts,
processes, methods and improvements or parts thereof, conceived or otherwise
made by you during the period of your employment by the Company, alone or
jointly with others and in any way relating to the Company's present or proposed
products or services or to tasks assigned to you during the course of your
employment, whether or not made during your regular working hours or on the
Company's premises (hereinafter collectively referred to as "Developments"),
together with all products or services which embody such Developments, shall be
the sole property of the Company. You agree to, and hereby do, assign to the
Company all your right, title and interest throughout the world in and to all
Developments and to anything tangible which evidences or constitutes any such
Development. You agree that all such Developments shall constitute works made
for hire under the copyright laws of the United States and hereby assign and, to
the extent any such assignment cannot be made at present, you hereby agree to
assign to the
-3-
Company all copyrights, patents, reproductions and other proprietary rights you
may have in any such Development, together with the right to file for and/or own
wholly without restriction United States and foreign patents, trademarks, and
copyrights with respect thereto.
c. EXCEPTIONS TO THIS AGREEMENT. You hereby certify that you have
informed the Company in writing of any and all continuing obligations which you
have to any previous employer and all Confidential Information or Developments
which you claim as your own or otherwise intend to exclude from this Agreement.
d. EMPLOYEE'S OBLIGATION TO COOPERATE. You will, at any time during
your employment, on request of the Company, execute all documents and perform
all lawful acts which the Company considers necessary or advisable to secure its
rights hereunder and to carry out the intent of this Agreement.
e. RETURN OF PROPERTY. At any time on request of the Company, you
shall return promptly all documents and other property belonging to the Company
or its Clients or business partners.
f. RESTRICTIONS ON CERTAIN POST-EMPLOYMENT ACTIVITIES.
(1) As long as you are employed by the Company and for a period
of one year after the termination of your employment for any reason (except in
conjunction with a general solicitation for employees), you shall not solicit,
or induce to resign any employee of the Company (or anyone who was an employee
of the Company during the period beginning six months prior to your termination
of employment with the Company), or assist in such hiring by any other person or
business entity or encourage any such employee to terminate his or her
employment with the Company.
(2) As long as you are employed by the Company, and for a
period of one year following termination of your employment, you shall not
either directly or indirectly (a) solicit, divert or attempt to divert from the
Company to yourself or to any other person or business entity the business or
patronage of any of the Clients or business partners of the Company; or (b)
provide services, whether on your own behalf or as an owner, manager,
consultant, director, officer, partner or employee of any other person or
business entity, to any of the Clients of the Company; provided, however, that
clause (b) shall not prohibit you from accepting employment as a direct employee
of Clients or business partners. In the event that you breach any of the terms
of this Section, the prohibitions set forth in this Section will remain in
effect for one year from the discovery of such breach by an officer of the
Company.
g. NO OTHER AGREEMENT. You warrant that you are not subject to any
agreement or obligation with any other party which would or could in any way
conflict with your obligations under this Agreement. You agree to indemnify and
hold harmless
-4-
the Company from any claims, actions or damages arising from or relating to a
breach or alleged breach of this subsection.
h. EQUITABLE REMEDIES; SURVIVAL. You and the Company agree that upon
a breach or violation of any provision of this Section 4, the Company, in
addition to all other remedies which might be available to it, shall be entitled
as a matter of right to equitable relief in any court of competent jurisdiction,
including the right to obtain injunctive relief or specific performance. You and
the Company agree that the remedies at law for any such breach or violation are
not fully adequate and that the injuries to the Company as a result of the
continuation of any breach or violation are incapable of full calculation in
monetary terms and, therefore, constitute irreparable harm. The provisions of
this Section 4 shall survive termination of this Agreement.
5. COMPENSATION AND BENEFITS UPON TERMINATION OF EMPLOYMENT.
Upon termination of your employment (such date of termination being
referred to as the "Termination Date"), regardless of when such termination
occurs, the Company will pay you the compensation and benefits as described in
this Section 5.
i. The Company will pay you on or about the Termination Date all
salary and vacation pay, if any, that has been earned or accrued
through the date of your termination from the Company and has not
yet been paid.
ii. You may be entitled to continuation of applicable life insurance,
accidental death and disability or other benefits for one (1)
year, provided that you make an appropriate conversion and comply
with the requirements of the applicable benefit plans.
iii. You will not be entitled to receive any other compensation or
benefits provided by, through or on behalf of the Company, under
this Agreement other than benefits that are vested as of the date
of termination and that are payable in accordance with the terms
of any applicable benefit plan.
iv. You acknowledge and agree that the compensation and benefits
provided above have been negotiated with the Company and shall be
deemed to fully satisfy any notice requirements which may be
required by any jurisdiction. This Section 5 constitutes your only
rights to compensation, benefits, damages, or other remedies
arising out of the termination of your employment.
v. The provisions of this Section 5 shall survive termination of this
Agreement.
-5-
6. SEVERANCE BENEFITS.
a. In the event that the Company terminates your employment other
than for cause (as defined below), you shall be entitled to the following
severance benefits: (i) a payment, within thirty (30) days of such termination,
in the amount of six (6) months salary then in effect, less standard deductions
and withholdings, (ii) a payment, within thirty (30) days of such termination,
in the amount of the cash bonus most recently paid by the Company to you, less
standard deductions and withholdings, (iii) the acceleration of vesting with
respect to shares of Common Stock of the Company and options to purchase Common
Stock of the Company held by you at the time of such termination as if your
employment with the Company had continued uninterrupted for an additional twelve
(12) months, and (iv) the continuation for a period of one (1) year following
such termination of your right to participate in or enjoy benefits under any
benefit plan of the Company in which you are participating at the time of such
termination, so long as such benefit plan remains generally available to
similarly situated employees of the Company. You agree that nothing in this
Agreement obligates the Company to maintain any such benefit plans or prevents
the Company from modifying or eliminating the rights of all participants under
such benefit plans from time to time, in the sole discretion of the Board.
b. The Company's termination of your employment with the Company
shall be without "cause" if the Company terminates your employment with the
Company for any reason other than: (i) the substantial and continuing failure,
after notice thereof, to render services to the Company or any subsidiary of the
Company in accordance with the terms or requirements of your position and
duties; (ii) gross negligence, willful misconduct, dishonesty or breach of
fiduciary duty to the Company or any subsidiary of the Company; (iii) the
commission of an act of embezzlement or fraud; (iv) deliberate disregard of the
written rules or policies of the Company or any subsidiary of the Company which
results in direct or indirect loss, damage or injury to the Company or any
subsidiary of the Company; or (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or any subsidiary of the
Company.
7. GENERAL.
a. EMPLOYMENT ELIGIBILITY. From time to time after your first day of
employment, you may be asked to provide proof of your identity as well as your
legal right to work in the United States. If for any reason you are unable to
provide proof of your identity as well as your legal right to work in the United
States, the Company may not be able to employ you in the Position and may
terminate your employment. If you are a citizen of a restricted country (as
identified by the U.S. Department of Commerce) you must receive a validated
license from the Office of Export Licensing. This license must be obtained
within a time limit established by the Company.
-6-
b. GOVERNING LAW. The validity, interpretation, effect, and
enforcement of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to choice of law rules.
c. ENTIRE AGREEMENT. In making your decision whether or not to accept
this offer, you agree that you have not relied upon any promises or
representations made by the Company, other than those made in this letter. This
Agreement and the Non-Disclosure, Non-Competition, Non-Solicitation & Assignment
Agreement referred to herein or to be executed pursuant to the provisions herein
set forth the entire Agreement and understanding between you and the Company,
and supersede any other negotiations, agreements, understandings, oral
agreements, representations or past or future practices, whether written or
oral, with, by or of the Company.
Each Company plan or policy referred to herein directly or by implication
is incorporated herein only insofar as it does not contradict this Agreement. If
any inconsistencies between this Agreement and any such plan or policy or future
plan or policy exist, the most recent applicable plan document or official
policy shall control.
d. MODIFICATION. This Agreement may not be amended, modified, changed
or discharged in any respect except as agreed in writing and signed by you and
the Chief Executive Officer of the Company.
e. SEVERABILITY AND INTERPRETATION. In the event that any provision
or any portion of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction, such provision or portion thereof shall be considered
separate and apart from the remainder of this Agreement and the other provisions
shall remain fully valid and enforceable. In the event that any provision is
held to be overly broad as written, such provision shall be deemed amended to
narrow its application to the extent necessary to make the provision enforceable
according to applicable law and enforced as amended.
f. NOTICES. All notices required by this Agreement shall be given in
writing either by personal delivery or by first class mail, return receipt
requested. Notices given to the Company shall be addressed to the Company at its
address set forth on the first page of this Agreement, or at such later address
where the Company's principal offices are located. Notice to you shall be to the
last known address as set forth in your personnel file. Notice given by personal
delivery shall be deemed given when delivered. Notice given by mail shall be
deemed given five (5) days following the date of mailing.
g. MISCELLANEOUS. The rights of the Company under this Agreement
shall inure to the benefit of and shall be binding upon the present and future
subsidiaries of the Company, any and all subsidiaries of a subsidiary, and
successors and assigns of the Company. No assignment of this Agreement by the
Company will relieve the Company of its obligations hereunder. You shall not
assign any of your rights and/or obligations
-7-
under this Agreement and any such attempted assignment will be void. This
Agreement shall be binding upon your heirs, executors, administrators or other
legal representatives and their legal assigns.
h. WAIVER. A waiver by either party of any of the terms or conditions
of this Agreement in any instance shall not be deemed or construed to be a
waiver of such term or condition for the future, or of any subsequent breach
thereof. All remedies, rights, undertakings, obligations and agreements
contained in this Agreement shall be cumulative and none of them shall be in
limitation of any other remedy, right, undertaking, obligation or agreement of
either party.
i. SURVIVAL. The provisions of this Section 6 shall survive
termination of this Agreement.
If you agree with the foregoing, please sign below and return the
original to me. You may keep the enclosed copy for your records.
Sincerely,
Breakaway Solutions, Inc.
By:/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Agreed to this 22nd day of March, 1999
Employee: /S/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
-8-