Exhibit 10.7
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is dated as of March ___,
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1999, by and between Xxxxxx Xxxxxx ("Employee") and Brio Technology, Inc., a
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Delaware corporation (the "Company").
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RECITALS
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Employee and the Company desire to terminate that certain Employment
Agreement between Employee and the Company dated as of September 1, 1993 (the
"Former Agreement") and enter into this Agreement on the terms set forth herein.
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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 hereby terminate the Former
Agreement in its entirety and agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof
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and, except for covenants, which by their terms have a longer period of
effectiveness, shall have a term of one (1) year (the "Original Term"). This
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Agreement may be terminated by either party, with or without cause, as provided
in Section 5. This Agreement may be extended for an additional one (1) year
after the end of the Original Term if the parties mutually agree in writing to
such extension.
2. Duties.
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(a) Position. Employee shall be employed as the Company's Chief
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Executive Officer and will report to the Company's Board of Directors.
(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 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 a member of the
Compensation Committee of the Board acting at the direction of a majority the
members of Compensation Committee of the Board.
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, bonus and other benefits described below in this Section 4.
(a) Salary. Employee shall receive a monthly salary of $16,666.66,
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which is equivalent to $200,000 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 or
its Compensation Committee.
(b) Bonus. Employee shall be entitled to receive an annual bonus of
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$100,000 (the "Bonus"), which will be earned upon the achievement of performance
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objectives to be determined by mutual agreement between Employee and the
Company.
(c) 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 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.
(d) 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
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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
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(v) Following Employee's death or Disability (as defined in
Section 7 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 on the
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effective date of such termination a cash payment equal to six (6) months
salary, less applicable withholding. In partial consideration for such
payment, at the Company's request Employee shall continue to provide services
for a period of up to six (6) weeks following the effective date of such
termination. Employee will also receive payment(s) for all salary, pro-rated
bonus 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.
(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 bonus 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) there is a material adverse change in
Employee's position causing such position to be of materially reduced stature
or responsibility; (2) a reduction of more than 20% of Employee's base
compensation unless in connection with similar decreases of other similarly
situated employees of the Company, or (3) 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:
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(a) Employee's willful misconduct or gross negligence in performance
of his duties hereunder, including Employee's refusal to comply in any material
respect with the legal directives of 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).
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 performance of all the terms
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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
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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, 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 11(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.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
BRIO TECHNOLOGY, INC.
BY:
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TITLE:
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ADDRESS: 0000 XXXX XXXXXXXX
XXXX XXXX, XX 00000
XXXXXX XXXXXX
SIGNATURE:
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ADDRESS:
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EXHIBIT A
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CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
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