EXHIBIT 10.27
CONFIDENTIAL RESIGNATION AGREEMENT
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AND GENERAL RELEASE OF CLAIMS (the "Agreement")
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1. Xxxx Xxxx ("Employee") was employed by Brio Technology, Inc. (the
"Company") on or about October 13, 1998; Employee has now decided to resign
voluntarily from his employment with the Company. It is the Company's desire to
provide Employee with certain benefits that he would not otherwise be entitled
to receive upon his resignation and to resolve any claims that Employee has or
may have against the Company. Accordingly, Employee and the Company agree as set
forth below. This Agreement will become effective on the later of (i) the eighth
day after it is signed by Employee or July 13, 2001 (the "Effective Date"),
provided that Employee has not revoked this Agreement (by written notice to
Xxxxx Xxxx or at the Company) prior to that date.
2. Employee hereby resigns voluntarily from any positions that he holds
with the Company effective as of October 31, 2001 (the "Resignation Date").
During the period between the Effective Date and the Resignation Date (the
"Transition Period"), Employee will continue to perform his duties, by
consulting from time to time as mutually agreed to by the parties. Such
consulting shall be performed in a professional and reasonable manner.
3. During the Transition Period or a lesser or greater period as
specifically specified below, as consideration of the release of claims below,
the Company will provide Employee with the following compensation and benefits:
(a) continued payment of Employee's salary at his current base salary
rate ($17,500 per month), less applicable withholding; and
(b) to the extent that Employee earns any bonuses pursuant to the your
Executive Vice-President Bonus Plan ("Fiscal Year `01 - April 1, 2001 to June
29, 2001") on or before June 29, 2001, the Company will pay such bonuses to
Employee; and
(c) any stock options granted to Employee by the Company will continue
to vest through the Resignation Date (but not thereafter) in accordance with the
terms of the applicable stock option agreements between Employee and the
Company; and
(d) Employee will be entitled receive his bonus of 4.25% of net
license fees earned by the Company, as specifically set forth in Section 4 (c)
of his Employment Agreement (irrespective of any other term to the contrary in
that Employment Agreement, including Section 5 of that agreement) dated October
13, 1998, until October 13, 2002. Except for this particular section, all other
terms of the Employee's Employment Agreement are hereby superceded by this
Agreement.
(e) Employee will continue to be covered by the Company's group health
insurance plan through the Resignation Date; thereafter, Employee may elect to
purchase continued group health insurance coverage at his own expense in
accordance with COBRA;
(f) Employee will continue to receive all employee benefits, including
but not limited PTO, ESPP, life insurance and disability insurance through the
Effective Date, excluding however health, vision and dental benefits which are
covered under paragraph 2 (e) above;
(g) Employee will be paid his 4 week sabbatical on the Resignation
Date. Employee understands and acknowledges that he shall not be entitled to any
payments or benefits from the Company other than those expressly set forth in
this paragraph 3.
4. Employee and his successors release the Company and its shareholders,
investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of
action, whether now known or unknown, which Employee now has, or at any other
time had, or shall or may have against those released parties based upon or
arising out of Employee's employment with the Company, the termination of his
employment with the Company, or any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time up to and including the Resignation
Date, including, but not limited to, any claims of breach of contract, wrongful
termination, retaliation, fraud, defamation, infliction of emotional distress or
national origin, race, age, sex, sexual orientation, disability or other
discrimination or harassment under the Civil Rights Act of 1964, the Age
Discrimination In Employment Act of 1967, the Americans with Disabilities Act,
the Fair Employment and Housing Act or any other applicable law.
5. Employee acknowledges that he has read section 1542 of the Civil Code of
the State of California, which states in full:
A general release does not extend to claims, which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Employee waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the parties listed above. Such waiver is
predicated upon Brio fulfilling all of its obligations to Employee under Section
3.
6. Employee acknowledges and agrees that he shall continue to be bound by
and comply with the terms of Section3, 5, 8, 12 and 13 of the Proprietary,
Confidential, and Trade Secret Information Agreement.
Employee agrees that he shall not directly or indirectly disclose any of the
terms of this Agreement to anyone other than his immediate family or counsel,
except as such disclosure may be required for accounting or tax reporting
purposes or as otherwise may be required by law. Employee further agrees that he
will not, at any time in the future, make any critical or disparaging statements
about the Company, its products or its employees, unless such statements are
made truthfully in response to a subpoena or other legal process. Nothing in
this paragraph shall prohibit Employee from providing references to
prospective employers of Brio employee(s)
Employee has worked with at Brio.
Company agrees to not make any, make any critical or disparaging
statements about the Employee.
8. Employee agrees that for a period of six months following the Effective
Date, he will not, on behalf of himself or any other person or entity, directly
or indirectly solicit any employee of the Company to terminate his/her
employment with the Company. 9. If any provision of this Agreement is deemed
invalid, illegal or unenforceable, such provision shall be modified so as to
make it valid, legal and enforceable, and the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected.
10. This Agreement may not be assigned by either party without the written
consent of the other party, excepting however that Brio may freely assign this
Agreement to a successor of all or substantially all of Brio's relevant assets
or in the event of a consolidation or merger of Brio with another company.
11. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements, whether written or oral, with the exception of any agreements
described above. This Agreement may not be modified or amended except by a
document signed by an authorized officer of the Company and Employee.
EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHIS UNDERSTANDS
THAT HE MAY HAVE UP TO 21 DAYS TO CONSIDER THIS AGREEMENT, THAT HE MAY REVOKE IT
AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS IT, AND THAT IT SHALL NOT BECOME
EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS PASSED. EMPLOYEE ACKNOWLEDGES THAT HE IS
SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE
COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 3.
Dated: July 6, 2001 /s/ Xxxx Xxxx
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Xxxx Xxxx
Brio Technology, Inc.
Dated: July 6, 2001 By: /s/ Xxxxxx XxxXxxx
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Xxxxxx XxxXxxx
