EXHIBIT 10.15
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is dated as of July 6, 1999,
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by and between Xxxx Xxxxxxxxx ("Employee") and Brio Technology, Inc., a Delaware
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corporation (the "Company").
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RECITALS
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This Agreement is entered into in connection with and is ancillary to an
Agreement and Plan of Merger (the "Merger Agreement") dated as of February 23,
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1999 among the Company, SQRIBE Technologies Corp., a Delaware corporation
("Target") and Socrates Acquisition Corporation, a Delaware corporation and a
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wholly owned subsidiary of Acquiror ("Sub"), pursuant to which Sub will merge
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with and into the Company (the "Merger"). The date on which the Merger becomes
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effective will be the effective date of this Agreement (the "Effective Date").
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Employee is the Senior Vice President, Products of Target. The Company
intends to continue the business of Target after the Merger and integrate such
business into the Company's ongoing business. To preserve and protect the
assets of Target, including Target's goodwill, customers and trade secrets of
which Employee has and will have knowledge in Employee's role as an employee of
the Company and to preserve and protect the Company's goodwill and business
interests going forward, and in consideration for the Company's entering into
and performing under the Merger Agreement, Employee has agreed to enter into
this Agreement.
In addition, as required by Section 8 below, Employee is concurrently
herewith entering into a Confidentiality Agreement in favor of the Company
designed to protect the Company's proprietary rights.
AGREEMENT
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In consideration of the mutual promises, agreements, warranties and
provisions contained in this Agreement, the parties agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof.
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2. Duties.
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(a) Position. Employee shall be employed as Executive Vice President
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in charge of BI Products and Services and will report to the Company's Chief
Executive Officer.
(b) Obligations to the Company. Employee agrees to the best of his
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ability and experience that he will at all times loyally and conscientiously
perform all of the duties and obligations required of and from Employee pursuant
to the express and implicit terms hereof, and to the reasonable satisfaction of
the Company. During the term of Employee's employment with the Company, Employee
will not engage in any other employment, occupation, or business activity
directly related to the business of the Company and will not compete with the
Company or assist others in competing with the Company in any way. Employee
will not serve as a director, officer, employee, or consultant of any person or
entity providing products and/or services that would substitute for or replace
those of the Company and agrees not to purchase or own any shares or interest in
any business providing products and/or services that would substitute for or
replace those of the Company, except Employee may own fewer than one percent
(1%) of the outstanding voting shares in a publicly traded corporation. Nothing
in this Agreement will prevent Employee from accepting speaking or presentation
engagements in exchange for
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honoraria or from serving on boards of charitable organizations. Employee will
comply with and be bound by the Company's operating policies, procedures and
practices from time to time in effect during the term of Employee's employment.
3. At-Will Employment. The Company and Employee acknowledge that
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Employee's employment is and shall continue to be at-will, as defined under
applicable law, and that Employee's employment with the Company may be
terminated by either party at any time for any or no reason. If Employee's
employment terminates for any reason, Employee shall not be entitled to any
payments, benefits, damages, award or compensation other than as expressly
provided in this Agreement. The rights and duties created by this Section 3 may
not be modified in any way except by a written agreement executed by the Chief
Executive Officer of the Company.
4. Compensation. For the duties and services to be performed by Employee
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hereunder, the Company shall pay Employee, and Employee agrees to accept, the
salary, stock options, bonus and other benefits described below in this Section
4.
(a) Salary. Employee shall receive a monthly base salary of $20,000,
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which is equivalent to $240,000 on an annualized basis. Employee's monthly
salary will be payable pursuant to the Company's normal payroll practices.
Employee's salary shall be reviewed on at least an annual basis, and any
increase will be effective as of the date determined appropriate by the Board,
its Compensation Committee or the Chief Executive Officer.
(b) Stock Options and Other Incentive Programs. In connection with
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the commencement of Employee's employment, the Board of Directors shall grant to
Employee an option to purchase 40,000 shares of the Company's Common Stock (the
"Shares") with an exercise price equal to the fair market value on the date of
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the grant. These option shares will vest as follows: 1/2 of the Shares will
vest on the date which is one (1) year following the date of grant, and
thereafter 1/12 of the remaining unvested Shares will vest on the monthly
anniversary of the date of grant, so that all of the Shares will be vested and
exercisable two (2) years after the date of grant. Vesting will depend on
Employee's continued employment with the Company. The option will be an
incentive stock option to the maximum extent allowed by the Internal Revenue
Code of 1986, as amended, and will be subject to the terms of the Company's 1998
Stock Option Plan and the Stock Option Agreement between Employee and the
Company. Subject to the discretion of the Company's Board of Directors,
Employee may be eligible to receive additional grants of stock options or
purchase rights from time to time in the future, on such terms and subject to
such conditions as the Board of Directors shall determine as of the date of any
such grant.
(c) Bonus. Employee shall be entitled to receive an annual bonus of
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$48,000 (the "Bonus"), which will be paid quarterly and which will be earned
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upon the achievement of quarterly performance objectives to be determined by
mutual agreement between Employee and the Company; provided, however, that the
first four quarterly payments of such Bonus to be paid following the date of
this Agreement are guaranteed. In addition, employee shall be entitled to
receive a special bonus of $30,000, not subject to the achievement of
performance objectives for fiscal year 2000, payable at the end of the fiscal
year.
(d) Additional Benefits. Employee will be eligible to participate in
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the Company's employee benefit plans of general application, including without
limitation, those plans covering medical, disability and life insurance in
accordance with the rules established for individual participation in any such
plan and under applicable law. Employee will be eligible for vacation and sick
leave in
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accordance with the policies in effect during the term of this Agreement and
will receive such other benefits as the Company generally provides to its other
employees of comparable position and experience.
(e) Reimbursement of Expenses. Employee shall be authorized to incur
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on behalf and for the benefit of, and shall be reimbursed by, the Company for
reasonable expenses, provided that such expenses are approved and substantiated
in accordance with Company policies.
5. Termination of Employment and Severance Benefits.
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(a) Termination of Employment. This Agreement may be terminated
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during its Original Term (or any extension thereof) upon the occurrence of any
of the following events and following notice to the non-terminating party:
(i) The Company's determination in good faith that it is
terminating Employee for Cause (as defined in Section 6 below)
("Termination for Cause");
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(ii) The Company's determination that it is terminating Employee
without Cause, which determination may be made by the Company at any time at the
Company's sole discretion, for any or no reason ("Termination Without Cause");
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(iii) The effective date of a written notice sent to the Company
from Employee stating that Employee is electing to terminate his or her
employment with the Company ("Voluntary Termination");
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(iv) A change in Employee's status such that a Constructive
Termination (as defined in Section 5(b)(iv) below) has occurred; or
(v) Following Employee's death or Disability (as defined in
Section 8 below).
(b) Severance Benefits. Employee shall be entitled to receive
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severance benefits upon termination of employment only as set forth in this
Section 5(b):
(i) Voluntary Termination. If Employee's employment
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terminates by Voluntary Termination, then Employee shall not be entitled to
receive payment of any bonus or severance benefits. Employee will receive
payment(s) for all salary, pro-rated commissions and unpaid vacation accrued as
of the date of Employee's termination of employment and Employee's benefits will
be continued under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination and
in accordance with applicable law.
(ii) Involuntary Termination. If Employee's employment is
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terminated under Section 5(a)(ii) or 5(a)(iv) above (such termination, an
"Involuntary Termination"), Employee will be entitled to receive following the
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effective date of such termination base salary continuation for six (6) months
(less applicable withholding). In addition, if Employee is the subject of an
Involuntary Termination within twelve (12) months following a merger or
acquisition involving a transfer of voting control of the Company (a "Change in
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Control"), with respect to stock options previously granted by Target only (and
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not stock options granted by the Company following the date hereof, including
without limitation the stock option described in Section 4(b)), 100% of such
options shall immediately vest and become exercisable.
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(iii) Termination for Cause. If Employee's employment is
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terminated for Cause, then Employee shall not be entitled to receive any further
payment of any bonus or any severance benefits. Employee will receive payment(s)
for all salary, pro-rated commissions and unpaid vacation accrued as of the date
of Employee's termination of employment and Employee's benefits will be
continued under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination and
in accordance with applicable law.
(iv) Constructive Termination. "Constructive Termination"
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shall be deemed to occur if (A)(1) Employee is not offered a reasonably similar
position with a successor entity following a Change in Control; (2) in the
absence of a Change in Control, a reduction of Employee's base compensation
unless in connection with similar decreases of other similarly situated
employees of the Company, (3) in the event of a Change in Control, a reduction
of Employee's base compensation, or (4) Employee's refusal to relocate to a
facility or location that is more than fifty (50) miles from Palo Alto,
California, and (B) within the 30-day period immediately following such material
change or reduction Employee elects to terminate his or her employment
voluntarily.
(v) Termination by Reason of Death or Disability. In the
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event that Employee's employment with the Company terminates as a result of
Employee's death or Disability (as defined in Section 7 below), Employee or
Employee's estate or representative will receive at the time of such termination
all salary, pro-rated commissions and unpaid vacation accrued as of the date of
Employee's death or Disability, and any other benefits payable under the
Company's then existing benefit plans and policies in accordance with such plans
and policies in effect on the date of death or Disability and in accordance with
applicable law.
6. Definition of Cause. For purposes of this Agreement, "Cause" for
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Employee's termination will exist at any time after the happening of one or more
of the following events:
(a) Employee's willful misconduct or gross negligence in performance
of his or her duties hereunder, including Employee's refusal to comply in any
material respect with the legal directives of Employees' direct supervisor, the
Company's Chief Executive Officer or the Board of Directors so long as such
directives are not inconsistent with the Employee's position and duties, and
such refusal to comply is not remedied within 10 working days after written
notice from the Company, which written notice shall state that failure to remedy
such conduct may result in Termination for Cause;
(b) Fraudulent conduct, a deliberate attempt to do an injury to the
Company, or conduct that materially discredits the Company or is materially
detrimental to the reputation of the Company, including conviction of a felony;
or
(c) Employee's material breach of any element of the Company's
Confidential Information and Invention Assignment Agreement, including without
limitation, Employee's theft or other misappropriation of the Company's
proprietary information.
7. Definition of Disability. For purposes of this Agreement,
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"Disability" shall mean that Employee has been unable to perform his or her
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duties hereunder as the result of his or her incapacity due to physical or
mental illness, and such inability, which continues for at least 120 consecutive
calendar days or 150 calendar days during any consecutive twelve-month period,
if shorter, after its commencement, is determined to be total and permanent by a
physician selected by the Company and its insurers and acceptable to Employee or
to Employee's legal representative (with such agreement on acceptability not to
be unreasonably withheld).
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8. Confidentiality Agreement. Employee shall sign, or has signed, a
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Confidential Information and Invention Assignment Agreement (the
"Confidentiality Agreement") substantially in the form attached hereto as
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Exhibit A. Employee hereby represents and warrants to the Company that he or
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she has complied with all obligations under the Confidentiality Agreement and
agrees to continue to abide by the terms of the Confidentiality Agreement and
further agrees that the provisions of the Confidentiality Agreement shall
survive any termination of this Agreement or of Employee's employment
relationship with the Company.
9. Conflicts. Employee represents that his or her performance of all the
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terms of this Agreement will not breach any other agreement to which Employee is
a party. Employee has not, and will not during the term of this Agreement,
enter into any oral or written agreement in conflict with any of the provisions
of this Agreement.
10. Successors. Any successor to the Company (whether direct or indirect
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and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agrees expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee's rights hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
11. Miscellaneous Provisions.
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(a) No Duty to Mitigate. Employee shall not be required to mitigate
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the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor, except as otherwise provided in this
Agreement, shall any such payment be reduced by any earnings that Employee may
receive from any other source.
(b) Amendments and Waivers. Any term of this Agreement may be amended
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or waived only with the written consent of the parties.
(c) Sole Agreement. This Agreement, including any Exhibits hereto,
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constitutes the sole agreements of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof and
thereof.
(d) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(e) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(f) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision,
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then (i) such provision shall be excluded from this Agreement, (ii) the balance
of the Agreement shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(g) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(h) Arbitration. Any dispute or claim arising out of or in connection
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with this Agreement will be finally settled by binding arbitration in San Mateo,
California in accordance with the rules of the American Arbitration Association
by one arbitrator appointed in accordance with said rules. The arbitrator shall
apply California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 12(h) shall not apply to the
Confidentiality Agreement.
(i) Advice of Counsel. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
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THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
(j) Promissory Note. Notwithstanding anything to the contrary
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contained in this Agreement, for the purposes of Employee's outstanding
Promissory Note with SQRIBE pursuant to which Employee purchased certain shares
of SQRIBE common stock, Employee's employment with the Company shall be deemed
to be continuing employment with SQRIBE, and no termination of Employee's
employment by SQRIBE shall be deemed to have occurred for so long as Employee
shall remain employed by the Company.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
BRIO TECHNOLOGY, INC.
By: /s/ Xxxxxx XxxXxxx
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Title: Vice President - Finance
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Address: 0000 Xxxx Xxxxxxxx
Xxxx Xxxx, XX 00000
XXXX XXXXXXXXX
Signature: /s/ Xxxx Xxxxxxxxx
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Address: 00000 Xxxxxx Xxxx
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Xxxxxxxx, XX 00000
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EXHIBIT A
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CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
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