EXHIBIT 10.7
EMPLOYMENT AGREEMENT
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This Employment Agreement is made and entered into by and between BRIO
TECHNOLOGY, INC. (the "Company") and Xxxxxx X. Xxxxxx ("Xxxxxx") as of
September 1, 1993.
1. Position and Duties. Xxxxxx will be employed by the Company as its
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Chief Executive Officer (CEO) reporting to the Company's Board of Directors (the
"Board") at its headquarters in Mountain View, California, effective
September 1, 1993 (the "Commencement Date"). As CEO, Xxxxxx agrees to devote his
full time, energy and skill to his duties at the Company. Xxxxxx shall perform
such duties and exercise such powers as are usually performed and exercised by
the CEO, including any duties consistent with his position which may be assigned
to Xxxxxx from time to time by the Board.
Company agrees that it shall not appoint another individual to act as CEO
without Xxxxxx'x consent. An appointment of another CEO, or a significant
restructuring of Xxxxxx'x job responsibilities without Xxxxxx'x consent shall be
construed as being a termination of employment without cause and shall be
treated under paragraph 6(b).
Although Xxxxxx is presently a member of the Board and the Company agrees
to use its best efforts to retain Xxxxxx as a Board member throughout his term
of employment, nothing in this agreement is contingent upon Xxxxxx'x retaining
membership on the Board of Directors of Brio Technology.
2. Term of Employment. Xxxxxx'x employment with the Company pursuant to
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this Agreement will be on an at-will basis, and may be terminated by either
party at any time, with or without cause. Upon the termination of Xxxxxx'x
employment with the Company, for any reason, neither Xxxxxx nor the Company
shall have any further obligation or liability to the other, except as set forth
in paragraphs 4, 5, 6, and 8 below and in the Confidentiality Agreement attached
hereto.
3. Location of Employment. Xxxxxx shall work at Company's headquarters.
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If Company's headquarters is moved more than 30 miles from its present location,
without consent of Xxxxxx, such relocation shall be considered an effective
Termination without cause and shall be covered by the terms of Paragraph 6(b)
below.
4. Compensation. Xxxxxx shall be compensated by the Company for his
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services as follows:
(a) Salary. Xxxxxx shall be paid a monthly salary of $13,333
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($160,000 on an annualized basis), subject to applicable withholding, in
accordance with the Company's normal payroll procedures. Effective January 1,
1994 Xxxxxx'x salary will be adjusted to an annualized rate of $176,000. After
that initial adjustment, Xxxxxx'x salary may be adjusted annually as determined
appropriate, it being expressly acknowledged that the sum of salary and bonus
shall not be decreased.
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(b) Benefits. Xxxxxx shall have the right, on the same basis as other
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members of the Company, to participate in and to receive benefits under any of
the Company's employee benefit plans, including the medical, dental, vision and
disability group insurance plans. In addition, Xxxxxx shall be entitled to the
benefits afforded to other members of management under the Company's vacation,
holiday and business expense reimbursement policies; provided, however, that
Xxxxxx shall be entitled to a minimum of fifteen (15) days of vacation in any
calendar year. Xxxxxx shall schedule those days subject to the approval of the
Company's Board of Directors.
(e) Expense Reimbursements. Upon receipt of proper documentation
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establishing the amount of such expenses, the Company shall reimburse Xxxxxx for
any reasonable business expenses incurred. Xxxxxx agrees to comply with any and
all policies established by the Company regarding business expenses in seeking
reimbursement for such expenses.
(f) Performance Bonus. Xxxxxx shall be entitled to a bonus payment of
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20% of Xxxxxx'x salary (pro-rated for any period of less than one year) for
achievement of operating plan targets agreed by the Board. Xxxxxx and the Board
must agree upon such targets within 3 months of the Effective Date of this
agreement. Performance bonus payments will be paid quarterly, subject to
withholding, and shall be determined according to the following plan:
(i) If the Company meets or exceeds its revenue targets in any 6 month
period starting either January 1 or July 1 of any year, Xxxxxx shall receive a
cash bonus equal to 10% of Xxxxxx'x salary during that period.
(ii) If the Company meets or exceeds its profit/loss targets in any 6
month period starting either January 1 or July 1 of any year, Xxxxxx shall
receive a cash bonus equal to 10% of Xxxxxx'x salary during that period.
For purposes of this section, "revenue" and "profit/loss" are defined
as the amount so described in the Company's annual financial statements and are
in accordance with generally accepted accounting practices.
(g) Attorneys' Fees for Review of Agreement. The Company shall
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reimburse Xxxxxx for reasonable attorneys fees incurred by Xxxxxx in the
negotiation and review of this Agreement.
5. Benefits Upon Voluntary Termination. In the event that Xxxxxx
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voluntarily resigns from his employment with the Company, or in the event that
Xxxxxx'x employment terminates as the result of his death or disability, Xxxxxx
shall be entitled to no compensation or benefits from the Company, other than
those earned under paragraph 4 above, through the date of his termination.
6. Benefits Upon Other Termination. Xxxxxx agrees that his employment may
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be terminated by the Company at any time, with or without cause. In the event
of termination of
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Xxxxxx'x employment by the Company for the reasons set forth below, he shall be
entitled to the following:
(a) Termination for Cause. If Xxxxxx'x employment is terminated by
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the Company for cause as defined below, Xxxxxx shall be entitled to no
compensation or benefits from the Company other than those earned under
paragraph 3 through the date of his termination. For purposes of this
Agreement, a termination "for cause" occurs if Xxxxxx is terminated for any of
the following reasons:
(i) theft, dishonesty, or falsification of any employment or
Company records;
(ii) improper disclosure of the Company's confidential or
proprietary information pursuant to the terms of the Company's Employee
Confidential Information and Inventions Agreement as attached hereto as
Exhibit A;
(iii) that Xxxxxx, in carrying out his duties hereunder, has
been guilty of (A) willful or gross neglect or (B) willful or gross
misconduct, resulting in either case, in harm to the Company;
(iv) that Xxxxxx has been convicted of the commission of or
entered a plea of nolo contendere with respect to (A) a felony or (B) any
crime or offense involving moral turpitude; or
(v) any material breach of this Agreement, which breach is not
cured within thirty (30) days following written notice of such breach from the
Company.
(b) Termination for Other Than Cause. If Xxxxxx'x employment is
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terminated by the Company or its successor organization, for any reason other
than cause, Xxxxxx shall be entitled to a lump sum payment equal to 18 months
salary, at Xxxxxx'x then current salary rate, less applicable withholding.
Company can require Xxxxxx to work for a maximum of 6 weeks after giving Xxxxxx
notice of his dismissal from the company.
7. Exclusive Remedy. Subject to paragraphs 5 and 6 above, Xxxxxx shall be
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entitled to no further compensation for any damage or injury arising out of the
termination of his employment by the Company.
8. Confidential Information and Inventions Agreement. Xxxxxx agrees to
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abide by the terms and conditions of the Company's standard Employee
Confidential Information and Inventions Agreement executed by Xxxxxx and
attached hereto as Exhibit A.
9. Entire Agreement. This Agreement constitutes the entire employment
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agreement between Xxxxxx and the Company regarding the terms and conditions of
his employment, with the exception of the confidentiality and inventions
agreement described in paragraph 7. This Agreement supersedes all prior
negotiations, representations or agreements between Xxxxxx and the Company,
whether written or oral, concerning Xxxxxx'x employment by the Company.
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10. Dispute Resolution. In the event of any dispute or claim relating to
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or arising out of the employment relationship or this Agreement (including, but
not limited to, any claims of wrongful termination or age, sex, or other
discrimination), Xxxxxx and the Company agree that all such disputes shall be
fully and finally resolved by binding arbitration conducted by the American
Arbitration Association in Santa Xxxxx County, California; provided, however,
that this arbitration provision shall not apply to any disputes or claims
relating to or arising out of the misuse or misappropriation of the Company's
trade secrets or proprietary information.
11. Attorneys' Fees. The prevailing party shall be entitled to recover
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from the losing party its attorneys' fees and costs incurred in any action
brought to enforce any right arising out of this Agreement.
12. Interpretation. Xxxxxx and the Company agree that this Agreement
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shall be interpreted in accordance with and governed by the laws of the State of
California.
13. Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the Company and its successors and assigns. In view of the
personal nature of the services to be performed under this Agreement by Xxxxxx,
he shall not have the right to assign or transfer any of his rights, obligations
or benefits under this Agreement, except as otherwise noted herein.
14. No Representations. Xxxxxx acknowledges that he is not relying, and
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has not relied, on any promise, representation or statement made by or on behalf
of the Company which is not set forth in this Agreement.
15. Validity. If any one or more of the provisions (or any part thereof)
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of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
16. Modification. This Agreement may only be modified or amended by a
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supplemental written agreement signed by Xxxxxx and the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year written below.
BRIO TECHNOLOGY, INC.
Date: September 3, 1993 By: /s/ XXXXXX XXXXXXX
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Its: Treasurer
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Date: September 3, 1993 /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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