EXHIBIT 10.20
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of March 6,
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2001 by and between Xxxxxx X. Xxxx (the "Executive") and Brio Technology, Inc.,
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a Delaware corporation (the "Company").
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1. Duties and Scope of Employment.
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(a) Position. During his employment under this Agreement
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("Employment"), the Company agrees to employ the Executive in the position of
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Executive Vice President, Sales. As such, the Executive shall report to the
Company's President and Chief Executive Officer.
(b) Obligations to the Company. During his Employment, the Executive
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agrees that he will devote his full business efforts and time to the Company
and, to the best of his ability, loyally and conscientiously perform all of the
duties and obligations required of and from him pursuant to the terms hereof.
The Executive further agrees that the Company will be entitled to all of the
benefits and profits arising from or incident to all his work, services and
advice; that he will not render commercial or professional services of any
nature to any person or organization, whether or not for compensation, without
the prior written consent of the President and Chief Executive Officer; and that
he will not during his employment directly or indirectly engage or participate
in any business that is competitive in any manner with the business of the
Company. Nothing in this Agreement will prevent the Executive from accepting
speaking or presentation engagements in exchange for honoraria or from serving
on boards of charitable organizations, or from owning no more than two percent
(2%) of the outstanding equity securities of a corporation whose stock is listed
on a national stock exchange or the Nasdaq.
(i) Advisory Boards. The Company acknowledges that the Executive
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currently sits on several Advisory Boards that are not in direct conflict with
the Company and the Company acknowledges that the Executive will continue this
practice.
(c) No Conflicting Obligations. The Executive represents and warrants
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to the Company that the Executive is under no obligations or commitments,
whether contractual or otherwise, that are inconsistent with his obligations
under this Agreement. The Executive represents and warrants that he will not
use or disclose, in connection with his employment by the Company, any trade
secrets or other proprietary information or intellectual property in which he or
any other person has any right, title or interest and that his Employment by the
Company as contemplated by this Agreement will not infringe or violate the
rights of any other person or entity. The Executive represents and warrants to
the Company that he has returned all property and confidential information
belonging to any prior employers.
(d) Background Check. Employment under the terms of this Employment
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Agreement is contingent upon the successful completion of a background
investigation check by the Company.
(e) Start Date. The Executive shall commence full-time Employment on
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March 19, 2001 (the "Start Date").
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2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay the Executive as compensation for
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his services a base salary of $25,000.00 per month ($300,000.00 on an annualized
basis), payable in accordance with the
Company's standard payroll policies and schedule and subject to applicable tax
withholding. The salary specified in this subsection (a), together with any
changes in such salary that the Company may make from time to time, is referred
to in this Agreement as the "Base Salary."
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(b) Sign-on Bonus. The Executive shall be entitled to a sign-on bonus
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of $50,000.00 (the "Sign-on Bonus"), subject to applicable tax withholding,
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payable on the first payroll date following the Start Date. If, on or before the
twelve (12) month anniversary of Executive's Start Date, his Employment is
terminated by the Company for "Cause" or by Executive "Without Good Reason" (in
each case, as defined below), Executive will be obligated to re-pay the entire
$50,000 Sign-on Bonus. The Executive shall not be obligated to repay the Sign-on
Bonus in the event of the termination of his Employment by either the Company or
himself as a result of his death or disability.
(c) Annual Bonus. The Executive will be eligible for an annual
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incentive bonus of up to $300,000.00 ("Target Bonus"), earned and payable on a
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quarterly basis in increments of no more than $75,000. Determination of the
amount of the Target Bonus earned, if any, will be based upon the Company's
achievement of various financial and/or other goals determined by the President
and CEO of the Company, as set forth in a written executive compensation plan
("Compensation Plan). The Compensation Plan will be determined by the President
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and Chief Executive Officer and will be agreed upon and presented to the
Executive after the Executive's Start Date. The Target Bonus is subject to
applicable tax withholdings and shall be payable in accordance with the
Company's normal practices and policies.
(d) Equity.
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(i) Option Grant. The Company will recommend that the Board of
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Directors grant the Executive an option to purchase 325,000 shares of Brio
Technology, Inc. Common Stock (the "Option") subject to the terms of the Brio
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1998 Stock Option Plan (the "Plan") and the Company's standard form of stock
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option agreement (copies of which are attached hereto as Exhibit A), which
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agreement must be executed as a condition of the exercise of the Option. The
grant of the Option is subject to and contingent upon requisite Board of
Directors approval and compliance with applicable securities law. The exercise
price of the Option will be equal to the fair market value of the Company's
Common Stock on your start date. Subject to the Executive's continued
employment with the Company, the Option will vest and become exercisable as to
1/4 of the total number of shares on the twelve (12) month anniversary of the
Start Date and 1/48 of the total number of shares on the monthly anniversary of
the Start Date each month thereafter.
(ii) Effect of Termination on Change of Control. If, in
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connection with or within twelve (12) months following a "Change of Control" (as
defined below), the Executive's employment is terminated "Without Cause" or the
Executive resigns "With Good Reason" (in each case, as defined below), the
vesting and exercisability of the Option shall, immediately prior to the
termination of the Executive's employment, accelerate as to 50% of the then-
unvested shares. The Executive shall not be entitled to the acceleration of
vesting and exercisability described in this Section 2(d)(ii) in the event of
the termination of his Employment by either the Company or himself as a result
of his death or disability.
3. Vacation and Executive Benefits. During his Employment, the Executive
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shall be eligible to accrue paid vacation in accordance with the Company's
standard policy for other executive officers, as such policy may be amended from
time to time, and shall be eligible to participate in any employee benefit plans
maintained by the Company for other executive officers, subject in each case to
the generally
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applicable terms and conditions of the plan in question and to the
determinations of any person or committee administering such plan.
4. Business Expenses. During his Employment, the Executive shall be
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authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with his duties hereunder. The Company shall
reimburse the Executive for such expenses, upon presentation of an itemized
account and appropriate supporting documentation, all in accordance with the
Company's generally applicable policies.
5. At-Will Employment. The Executive's Employment with the Company shall
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at all times be "at will," which means that either the Executive or the Company
may terminate the Executive's Employment at any time, with or without cause.
Any contrary representations that may have been made are superseded and governed
by this Section 5. This Agreement shall constitute the full and complete
agreement between the Executive and the Company on the "at will" nature of the
Executive's Employment. The policy of employment "at-will" may only be changed
in an express written agreement signed by the Executive and by the President and
CEO of the Company.
6. Termination Benefits. The Executive shall be entitled to receive
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benefits upon termination of employment only as set forth in this Section 6 and
Section 2(d)(ii), as applicable. The Executive's entitlement to such
termination benefits shall be conditioned upon the Executive's execution and
delivery to the Company of (ii) the Company's standard form of release of all
claims and, (ii) a resignation from all of the Executive's positions with the
Company.
(a) Involuntary Termination Without Cause. If the Employment with the
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Company is terminated by the Company "Without Cause", Executive shall be
entitled to a lump sum payment of six (6) months of his then-current Base Salary
(subject to applicable tax withholding).
(b) All Other Terminations. With respect to any termination of
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Employment other than as described in Section 6(a) above, the Executive shall
not be entitled to any severance benefits and such terminations shall be
governed by Section 5 above. The Executive shall not be entitled to the
benefits described in Section 6(a) in the event of the termination of his
Employment by either the Company or himself as a result of his death or
disability.
7. Definitions.
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(a) "Cause." For all purposes under this Agreement, a termination for
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"Cause" shall mean a determination by the Company that the Executive's
Employment is terminated for any of the following reasons: (i) the Executive's
willful act of fraud, embezzlement, dishonesty or other misconduct that
materially damages the Company; (ii) the Executive's willful failure to perform
his duties to the Company, to follow Company policy as set forth in writing from
time to time, or to follow the legal directives of the Company (other than
failure to meet performance goals, objectives or measures), in each case in a
manner that results in material damage to the Company, that is not corrected
within thirty (30) days following written notice thereof to Executive by the
Company's Chief Executive Officer, such notice to state with specificity the
nature of the failure; provided that if such failure cannot reasonably be
corrected within thirty (30) days of written notice thereof, correction shall be
commenced by the Executive within such period and may be corrected within a
reasonable period thereafter; (iii) the Executive's misappropriation of any
material assets of the Company; (iv) the Executive's conviction of, or a plea of
"Guilty" or "no contest" to, a felony under the laws of the United States or any
state thereof; (v) the
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Executive's willful and material breach of any agreement with the Company, that
is not corrected within thirty (30) days following written notice thereof to
Executive by the Company's Chief Executive Officer, such notice to state with
specificity the nature of the breach; provided that if such breach cannot
reasonably be corrected within thirty (30) days of written notice thereof,
correction shall be commenced by the Executive within such period and may be
corrected within a reasonable period thereafter; or (vi) the Executive's willful
use or unauthorized disclosure of any proprietary information or trade secrets
of the Company or any other party to whom the Executive owes an obligation of
nondisclosure as a result of his relationship with the Company.
(b) "Without Cause." For all purposes under this Agreement, a
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termination of the Employment by the Company "Without Cause" shall mean a
termination by the Company in the absence of "Cause", as defined above, but in
no event shall the term "Without Cause" include a termination as a result of the
Executive's death or disability.
(c) "Good Reason." For all purposes under this Agreement, "Good
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Reason" for the Executive's resignation will exist if he resigns from Employment
within 60 days after the occurrence, without the Executive's written consent, of
any of the following: (i) any material reduction in his Base Salary or Target
Bonus; (ii) any material reduction in his benefits; (iii) a change in his
position with the Company or a successor company that materially reduces his
stature; or (iv) a material breach by the Company of its obligations to the
Executive under this Agreement, that is not corrected within thirty (30) days
following written notice thereof to the Company by the Executive, such notice to
state with specificity the nature of the failure; provided that if such failure
cannot reasonably be corrected within thirty (30) days of written notice
thereof, correction shall be commenced by the Company within such period and may
be corrected within a reasonable period thereafter.
(d) "Without Good Reason." For all purposes under this Agreement, a
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termination of the Employment by the Executive "Without Good Reason" shall mean
any other termination by the Company other than a resignation for "Good Reason".
(e) "Change of Control." For all purposes under this Agreement, a
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Change of Control shall mean a sale of all or substantially all of the Company's
assets, or any merger or consolidation of the Company with or into another
corporation other than a merger or consolidation in which the holders of more
than 50% of the shares of capital stock of the Company outstanding immediately
prior to such transaction continue to hold (either by the voting securities
remaining outstanding or by their being converted into voting securities of the
surviving entity) more than 50% of the total voting power represented by the
voting securities of the Company, or such surviving entity, outstanding
immediately after such transaction.
8. Confidentiality Agreement. The Executive shall sign a Confidential
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Information and Invention Assignment Agreement (the "Confidentiality Agreement")
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in the form attached hereto as Exhibit B. The Executive hereby represents and
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warrants to the Company that he will comply 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
the Executive's employment relationship with the Company.
9. Successors.
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(a) Company's Successors. This Agreement shall be binding upon any
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successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise)
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to all or substantially all of the Company's business and/or assets. For all
purposes under this Agreement, the term "Company" shall include any successor to
the Company's business and/or assets which become bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights of the
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Executive hereunder shall inure to the benefit of, and be enforceable by, the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Miscellaneous Provisions.
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(a) No Duty to Mitigate. Executive shall not be required to mitigate
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the amount of any payment contemplated by this Employment 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 the Executive may receive from any other source.
(b) Notice. Notices and all other communications contemplated by
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this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by overnight courier, U.S. registered
or certified mail, return receipt requested and postage prepaid. In the case of
the Executive, mailed notices shall be addressed to him at the home address that
he most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters.
(c) Modifications and Waivers. No provision of this Agreement shall
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be modified, waived or discharged unless the modification, waiver or discharge
is agreed to in writing and signed by the Executive and by the Company's Chief
Executive Officer (other than the Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(d) Whole Agreement. No other agreements, representations or
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understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement and the Confidentiality
Agreement contain the entire understanding of the parties with respect to the
subject matter hereof.
(e) Taxes. All Payments made under this Agreement shall be subject to
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reduction to reflect taxes of other charges required to be withheld by law.
(f) 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 (except provisions governing the choice of law).
(g) Severability. The invalidity or unenforceability of any provision
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or provisions of this Agreement shall not effect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(h) No Assignment. This Agreement and all rights and obligations of
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the Executive hereunder are personal to the Executive and may not be transferred
or assigned by the Executive at any time. The Company may assign its rights
under this Agreement to any entity that assumes the Company's
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obligations hereunder in connection with any sale or transfer of all or a
substantial portion of the Company's assets to such entity.
(i) 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 Santa
Clara, California in accordance with the rule of the American Arbitration
Association by one arbitrator appointed in accordance with said rules. The
Executive and the Company shall split the cost of the arbitration filing and
hearing fees and the cost of the arbitrator. Each party shall bear its own
attorney fees, unless otherwise determined by the arbitrator. The arbitrator
shall apply California law, without reference to rules of conflicts of law or
rules or statutory arbitration, to the resolution of any dispute. Judgement 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 paragraphs, without breach of
this arbitration provision. This Section 10(i) shall not apply to any dispute
or claim relating to the Confidentiality Agreement.
(j) Headings. The headings of the paragraphs contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of any provision of this Agreement.
(k) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(l) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
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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.
Each of the parties has executed this Agreement, in the case of the Company
by its duly authorized officer, as of the day and year first above written.
XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
BRIO TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: President and CEO
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