EXHIBIT 10.26
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of June 22,
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2001 by and between Xxxxx Xxxxxxx (the "Executive") and Brio Technology, Inc., a
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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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Chief Marketing Officer (CMO), worldwide marketing responsibility. 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 his 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.
(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.
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.
(d) Start Date. The Executive shall commence full-time Employment on
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June 25, 2001 (the "Start Date"). If Executive does not commence employment by
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such date this agreement shall become null and void.
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 $20,833.33 per month ($250,000.00 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) Special Sign-on Bonus. The Executive shall be paid a Special
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Sign-On Bonus of $50,000 (the "Special Sign-On Bonus "), subject to applicable
tax withholding, payable on the first payroll date following the Start Date that
will be paid on the Start Date. The Special Sign on Bonus will be forgiven by
the company on the twelve (12) month anniversary of the Executive's Start Date
provided the Executive is an employee of the Company on such date. If, on or
before the twelve (12) month anniversary of Executive's Start Date, the
Executive's employment with the Company is voluntarily terminated with the
Company or the Executive is terminated for Cause, the Executive will be
obligated to repay the entire $50,000 Special Sign-On Bonus within thirty (30)
days of his termination date. If, on or before the twelve (12) month
anniversary of Executive's Start Date, the Executive's employment with the
company is terminated Without Cause or for Good Reason, the Executive will not
be obligated to repay the Special Sign-On Bonus. The Executive shall not be
obligated to repay the Special 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. Forgiveness of the Special Sign-On Bonus, if any, under this
provision shall result in taxable income to the Executive and the Executive
agrees to make adequate provisions for all taxes due on such income.
(c) Annual Bonus For FY 2002. The Executive will be eligible to
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earn an annual incentive bonus of $100,000 ("Target Bonus"), paid quarterly. In
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FY2002 (April 2001-March 2002), fifty percent (50%) of the Target Bonus will be
guaranteed. The Determination of the amount of the remaining Target Bonus earned
in FY 2002 and the entire Target Bonus in subsequent years will be based (75%)
upon the Company's achievement of various financial and/or other goals and (25%)
upon achievement of specific MBOs to be reasonably determined and agreed upon by
the Parties. The Target Bonus is subject to applicable tax withholdings and
shall be payable in accordance with the Company's normal practices and policies
no later than 30 days after the end of each bonus period.
(d) Equity.
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(i) Initial Option Grant. The Company will recommend that the
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Board of Directors grant the Executive an option to purchase 250,000 shares of
the Company's Common Stock (the "Initial Option"), which grant shall be
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effective on the Start Date and be subject to the terms of the Company's 1998
Stock Option Plan (the "Plan") and the Company's standard form of stock option
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agreement (copies of which are attached hereto as Exhibit A), which agreement
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must be executed as a condition of the exercise of the Initial Option. The grant
of the Initial Option is subject to compliance with applicable securities law.
The exercise price of the Initial Option will be equal to the fair market value
of the Company's Common Stock on the Executive's Start Date. Subject to the
Executive's continued employment with the Company, the Initial 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 of Employment in Connection with a
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Change of Control. If, within 6 months prior to or 12 months following a Change
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of Control of the Company, either (i) the Company terminates Executive's
Employment "Without Cause" (as such term is defined in section 7 (b) below) or
(ii) The Executive terminates his employment for Good Reason (as such term is
defined
in section 7 (c) below), then each of the Executive's outstanding unvested
options will become fifty (50%) percent vested as of the termination date.
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 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 (i) a general release of all claims, (ii) a resignation from all of
the Executive's positions with the Company and (iii) an agreement not to engage
directly or indirectly or participate in any business or proposed business that
is competitive in any manner with the business of the Company for the period of
time following termination of the Executive's employment during which the
Company is providing termination benefits to Executive as set forth in Section
6(a)(i) (ii) (iii) below.
(a) Involuntary Termination. If Brio terminates the Executive's
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employment "Without Cause" or the Executive resigns with "Good Reason" at any
time during his Employment, then the Executive shall be entitled to the
following:
(i) The Company shall provide Executive with payment of six (6)
months of his then-current Base Salary (subject to applicable tax withholding),
payable in accordance with the Company's normal payroll practices; and
(ii) The Company shall pay Executive's group insurance premiums
under COBRA for the six (6) month period immediately following his termination;
thereafter, the Executive shall be eligible for COBRA benefits and may elect to
continue such coverage at his own expense in accordance with the company's
standard policy; and
(iii) The Company shall accelerate vesting of Executive's stock
option(s) such that an additional number of shares of stock equal to the number
in which Executive would have vested if his service had continued for an
additional six (6) months shall immediately vest as of the
termination date. Provided, however, that if the Termination occurs in
connection with a Change of Control, the Executive shall be entitled to the
vesting acceleration benefits described in 2(d)(ii) above.
(b) Other Terminations. With respect to any termination of Employment
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other than those described in Section 6(a) or in Section 2(d)(ii) above, the
Executive shall not be entitled to any severance benefits and such terminations
shall be governed by Section 5 above.
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 good faith determination by the Company that the
Executive's Employment be 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 and the actions required of Executive to rectify 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 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 and the actions required of
Executive to cure 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; and (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 within 60 days
of the occurrence of any of the following without the Executive's written
consent: (i) any 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. A resignation by the Executive
under any other circumstances or for any other reasons will be a resignation
"Without Good Reason."
(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) 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 becomes 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 this
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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 his 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, the Confidentiality
Agreement, and the stock option agreement and stock plan documents, 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,
unless otherwise specified in this Agreement.
(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 as such laws are applied to agreements between California residents
entered into and to be performed entirely in California.
(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 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.
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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BRIO TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Title: CEO and President
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