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EXHIBIT 10.1
[HYPERION LOGO]
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYEE NAME: EFFECTIVE DATE: OFFER LETTER DATE (if any):
Xxxxxxx X. Xxxxx July 21, 2004 None
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POSITION (title): SUPERVISOR (title):
Executive Chairman of Board of Board of Directors
Directors
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EMPLOYMENT (briefly describe nature of position):
Employee will devote up to one half of his business efforts as Chairman of the
Board of Directors of the Company.
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BASE SALARY: BONUS PERCENTAGE:
Six hundred thousand dollars ($600,000.00) None
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INITIAL TERM: RENEWAL PERIOD: CONTINUATION PERIOD:
Twelve (12) months Twelve (12) months Four (4) months, or
through the end of
the current term or
renewal period,
whichever is greater.
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ADDITIONAL BENEFITS (if any):
1. Reimbursement for the reasonable and customary cost of an annual physical
examination.
2. The Company will provide to the Employee certain reasonable financial
planning and income tax services, as follows. The financial planning and tax
firm(s) of Employee's choice will prepare and sign the Employee's individual
income tax returns and provide the Employee with estimated tax calculations. In
addition, the tax professionals will provide the Employee with income tax
projections to help Employee develop his or her personal financial goals and
strategies, including planning for the exercise and/or sale of option stock.
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ADDITIONAL TERMS (if any):
1. On October 11, 1999, the Company loaned Employee one million dollars
($1,000,000.00). This note bears interest and is due full on October 11, 2005
(or earlier in certain events.) Effective January 2002, the Company agreed it
will forgive 25% of the principal, or two hundred fifty thousand dollars
($250,000), and the interest accrued with respect to such 25%, for any year,
commencing with the year ending June, 2002, in which the earnings per share of
the Company equal or exceed targets set by the Compensation Committee of the
Board of Directors. In the event that the Company's earnings per share are under
or over such earnings per share target, then the Company will consider forgiving
less or more, respectively, of the 25% amount, provided that the Company is only
obligated to forgive 25%, and then only in the event the earnings per share
target is met. Employee will be responsible for paying all personal income tax
due on account of any such forgiveness.
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THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the
effective date ("Effective Date") specified above, by and between Hyperion
Solutions Corporation, with offices currently at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Hyperion") and the executive employee ("Employee")
specified above.
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
Page 1 of 8
1. DUTIES AND SCOPE OF EMPLOYMENT
a. Subject to the terms of this Agreement, Hyperion agrees to employ Employee
in the position ("Position") specified in above, or in such other position as
Hyperion subsequently may assign to Employee, to perform the duties of the
Position ("Employment") specified above. Employee shall report to the supervisor
("Supervisor") specified above.
b. During the term of Employee's Employment, without the prior written
approval of Hyperion (which shall not be unreasonably withheld), Employee shall
not render services in any capacity to any other person or entity, and shall not
act as a sole proprietor, partner or managing member of any other entity or as a
shareholder owning more that one percent (1%) of the stock of any other
competitive corporation or entity. The foregoing, however, shall not preclude
Employee from engaging in reasonable community, school or charitable activities.
c. Employee shall comply with Hyperion's policies and rules, as they may be
in effect from time to time, during the term of Employee's Employment.
d. Employee represents and warrants to Hyperion, to the best of Employee's
knowledge and belief, that Employee is under no obligation or commitment,
whether contractual or otherwise, that is inconsistent with Employee's
obligations under this Agreement. Employee represents and warrants to Hyperion,
to the best of Employee's knowledge and belief, that Employee's Employment with
Hyperion will not require the use, or disclosure, of any trade secrets or other
proprietary information or intellectual property in which Employee, or any other
person, has any right, title or interest, and that Employee's Employment by
Hyperion, as contemplated by this Agreement, will not infringe or violate the
rights of any other person or entity. Employee represents and warrants to
Hyperion, to the best of Employee's knowledge and belief, that Employee has
returned all property and confidential information belonging to any prior
employer.
2. COMPENSATION
a. Hyperion shall pay Employee, as compensation for Employee's services, a
base salary at a gross annual rate of not less than the base salary ("Base
Salary") specified above. Such Base Salary shall be payable in accordance with
Hyperion's standard payroll procedures. The Base Salary, together with any
increases in such compensation that Hyperion may grant from time to time, shall
be referred to as the base compensation ("Base Compensation").
b. During the term of Employee's Employment, Employee shall be eligible to
participate in any employee benefit plans maintained by Hyperion for similarly
situated employees, 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. In addition to the foregoing benefits,
Employee shall be entitled to the additional benefits ("Additional Benefits")
specified above, if any.
c. During the term of Employee's Employment, Employee shall be authorized to
incur necessary and reasonable travel, entertainment and other business expenses
in connection with Employee's duties hereunder. Hyperion shall reimburse
Employee for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with Hyperion's
generally applicable policies. Any single expenditure in excess of ten thousand
dollars ($10,000.00) shall require the prior approval of Hyperion's Chief
Executive Officer, President or Chief Financial Officer.
3. TERM OF EMPLOYMENT
a. This Agreement shall be for the initial term ("Initial Term") specified
above. Thereafter, this Agreement shall automatically be renewed for successive
renewal periods ("Renewal Period") as specified above, unless either party has
given the other party written notice of non-renewal not less than one hundred
twenty (120) days prior to the end of the Initial Term, or Renewal Period then
in effect.
b. Hyperion agrees to continue Employee's Employment, and Employee agrees to
remain in Employment with Hyperion, from the Effective Date until the earlier of
the Initial Term Date or Renewal Period, or the date when Employee's Employment
terminates according to section 4, below.
4. TERMINATION
a. Employee may terminate Employee's Employment at any time and for any
reason (or no reason) by giving Hyperion thirty (30) days advance written
notice. Hyperion may terminate Employee's Employment at any time and for any
reason (or no reason), and with or without cause, by giving Employee one hundred
twenty (120) day advance written notice.
b. Hyperion may also terminate Employee's Employment due to Employee's
permanent disability, by giving Employee notice in writing. Permanent disability
shall mean that Employee, at the time notice is given, has failed to perform
Employee's duties under this Agreement for sixty (60), or more consecutive days,
or for ninety (90), or more days, during any twelve (12) month period, as the
result of Employee's incapacity due to physical or mental injury, disability or
illness, and which Hyperion is unable to accommodate reasonably without undue
hardship. Employee's Employment shall terminate automatically in the event of
Employee's death.
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
Page 2 of 8
c. Unless otherwise provided for herein, upon the termination of Employee's
Employment pursuant to this section, Employee shall only be entitled to the
compensation, benefits and reimbursements described in section 2 for the period
preceding the effective date of the termination. No unpaid bonus under section 2
shall be payable for the year in which Employee's Employment terminates, unless
the applicable bonus program expressly provides for the payment of a prorated
bonus for such year. The payments under this Agreement shall fully discharge all
responsibilities of Hyperion to Employee. The termination of this Agreement
shall not limit or otherwise affect Employee's obligations under section 5.
d. Any other provision of this Agreement notwithstanding, subsections e and
f, below, shall not apply unless Employee has executed a general release (in a
form prescribed by Hyperion, such as the current Termination Release Agreement
available from the Hyperion legal department) of all known and unknown claims
that Employee may then have against Hyperion or persons affiliated with
Hyperion. Such release shall include, among other things, an agreement not to
prosecute any legal action or other proceeding based upon any of such claims.
Employee acknowledges that such release may provide that in the event of a
breach by Employee of the terms of the release, or of Employee's obligations
under section 5 hereof, Hyperion shall be entitled to recover from Employee all
amounts paid under subsections e and f of this section, as well as all
litigation costs (including attorneys' fees and expenses) incurred by Hyperion
in connection with such breach.
e. If Hyperion does not renew this Agreement, or terminates Employee's
Employment for any reason other than permanent disability or cause (as defined
below), or if Hyperion was subject to a change in ownership and/or control (as
defined below) during the term of this Agreement and, within twelve (12) months
thereafter, Employee resigns for good reason, as defined below, then, for the
continuation period ("Continuation Period") specified above, following
Employee's termination, Hyperion shall pay Employee Employee's Base
Compensation, at the rate in effect at the time of the termination of Employment
in accordance with Hyperion's standard payroll procedures, and continue the
coverage of Employee, and Employee's dependents (if applicable), under the
health benefit plans in effect at the time of the termination. To the extent
that such plans or the insurance contracts or provider agreements associated
with such plans do not permit the extension of Employee's coverage following the
termination of Employee's active employment, Hyperion shall pay Employee cash in
an amount equal to the cost to Hyperion of the coverage that cannot be provided.
If Employee elects to continue Employee's health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA"), following Employee's
termination, then the date of the "qualifying event" for purposes of COBRA shall
be Employee's last day of active employment.
f. Termination for cause means:
i. Employee's failure to perform, in a satisfactory fashion, one or
more reasonable and lawful duties assigned to Employee by Hyperion under
this Agreement, if such failure continues for seven (7) days or more after
Hyperion has given Employee written notice describing such failure and
advising Employee of the consequences of such failure under this
Agreement, provided that such notice shall be required only with respect
to the first such failure;
ii. Employee's misconduct relating to Hyperion's affairs, if such
misconduct continues for seven (7) days or more after Hyperion has given
Employee written notice describing such misconduct and advising Employee
of the consequences of such misconduct under this Agreement, provided that
such notice shall be required only with respect to the first occurrence of
such misconduct, provided further there shall be no requirement that the
misconduct continue for seven (7) days or more with respect to acts for
which an employee's employment is specifically terminable under Hyperion's
policies and procedures applicable to all employees;
iii. Employee's conviction of, or a plea of guilty or no contest to, a
felony, or a misdemeanor which calls into question Employee's honesty,
under the laws of any country, including the United States, or any state
thereof;
iv. any breach of this Agreement, the employee agreement, relating to
confidential information and intellectual property rights, between
Employee and Hyperion, or any other agreement between Employee and
Hyperion;
v. threats or acts, of violence or harassment, directed at any present,
former or prospective employee, independent contractor, vendor, customer
or business partner of Hyperion; or
vi. fraud or embezzlement involving the assets of Hyperion or its
affiliates, customers or suppliers.
The foregoing shall not be deemed an exclusive list of all acts or omissions
that Hyperion may consider as grounds for the termination of Employee's
Employment with cause. Termination for cause hereunder shall be deemed to be
termination for misconduct under Hyperion's stock option plans and related
agreements.
g. A change in ownership and/or control means:
i. a change in ownership or control of Hyperion effected through either
of the following actions:
1/ the acquisition, directly or indirectly, by any person or
related group of persons (other than Hyperion, or a person that
directly or indirectly controls, is controlled by, or is under
common control with, Hyperion), of beneficial ownership (within the
meaning of Rule 13d-3 of the 0000 Xxx) of securities possessing more
than fifty percent (50%) of the total combined voting power of
Hyperion's outstanding securities pursuant to a tender or exchange
offer made directly to Hyperion's stockholders which the Hyperion
board of directors does not recommend such stockholders to accept;
or
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
Page 3 of 8
2/ a change in the composition of the board over a period of
thirty-six (36) consecutive months, or less, such that a majority of
board members ceases, by reason of one or more contested elections
for board membership, to be comprised of individuals who either have
been board members continuously since the beginning of such period,
or have been elected or nominated for election as board members
during such period by at least a majority of the board members who
were still in office at the time the board approved such election or
nomination; or
ii. either of the following stockholder-approved transactions to which
Hyperion is a party:
1/ a merger or consolidation in which securities possessing more
than fifty percent (50%) of the total combined voting power of
Hyperion's outstanding securities are transferred to a person, or
persons or entity different from the persons or entities holding
those securities immediately prior to such transaction; or
2/ the sale, transfer or other disposition of all or
substantially all of Hyperion's assets in complete liquidation or
dissolution of Hyperion.
h. Good reason means:
i. a change in Employee's position with Hyperion which materially
reduces Employee's level of responsibility in effect immediately prior to the
change of ownership and/or control;
ii. a reduction in Employee's level of compensation (including Base
Salary, benefits and participation in corporate-performance based bonus or
incentive programs) in effect immediately prior to the change of ownership
and/or control by more than fifteen percent (15%); or
iii. a relocation of Employee's place of employment prior to the change
of ownership and/or control by more than fifty (50) miles;
provided and only if such change, reduction or relocation is effected by
Hyperion without Employee's consent.
5. EMPLOYEE'S COVENANTS
a. From the Effective Date of this Agreement and continuing until the second
(2nd) anniversary of Employee's termination, Employee shall not interfere with
the business of Hyperion by, directly or indirectly, personally or through
others, soliciting or attempting to solicit, on Employee's own behalf or on
behalf of any other person or entity, the employment of any employee of
Hyperion, or any of Hyperion's affiliates. During this period, Employee shall
not encourage or induce, or take any action that has the effect of encouraging
or inducing, any employee of Hyperion, or any of Hyperion's corporate
affiliates, to terminate that employee's employment.
b. For a period of one (1) year following Employee's termination, Employee
shall not hire, or assist any other person in hiring, any person who was an
employee of Hyperion on the date of Employee's termination, to work at
Employee's new place of employment in a position that reports either directly to
Employee, or to any other person who reports directly to Employee.
c. The parties agree that information relating to the identities, key contact
personnel, preferences, needs and circumstances of Hyperion's customers are
trade secrets belonging to Hyperion that are, and necessarily will be, used by
Employee, during Employee's Employment, in the solicitation of business from
Hyperion's customers. As a result, from the Effective Date of this Agreement and
continuing until the second (2nd) anniversary of Employee's termination,
Employee shall not, directly or indirectly, personally or through others,
solicit, or attempt to solicit (on Employee's own behalf or on behalf of any
other person or entity), the business of any customer, or prospective customer,
of Hyperion, or of any of Hyperion's affiliates, for services or products
similar to those sold by Hyperion. Prospective customer means any person or
entity whom Employee was involved in contacting or soliciting to become a
customer during the six (6) month period prior to Employee's termination.
d. Employee has entered into an employee agreement, relating to confidential
information and intellectual property rights, with Hyperion, which is
incorporated herein by reference, and survives the termination or expiration of
this Agreement. Given the nature of Employee's Position, the parties agree that
from Employee's termination until the third (3rd) anniversary of such date, it
would be practically impossible for Employee to work in a position similar to
Employee's Position with Hyperion, doing similar tasks involved with Employee's
Employment with Hyperion, for certain companies, including their subsidiaries
and affiliates, that provide services or products that are similar to those of
Hyperion, without disclosing Hyperion's trade secrets. A list of such companies,
which may be amended from time to time by written notice of Hyperion, is
attached hereto as Schedule A.
e. The state of California has certain statutory and common law restrictions
on non-competition agreements between employers and employees, and it is not the
intent of Hyperion to violate or circumvent those restrictions. However, to the
extent that Employee resides and Employee's principal place of employment is
outside of the state of California, then during the period from the Effective
Date of this Agreement and continuing until the second (2nd) anniversary of
Employee's termination, Employee shall not, directly or indirectly (other than
on behalf of Hyperion or with Hyperion's prior written consent), engage in any
competitive business activity, as defined below, in any of the locations listed
in Schedule B, attached
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
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hereto. If conditions of subsection 4.e apply, the foregoing two (2) year period
shall be reduced to one (1) year. Competitive business activity means:
i. engaging in, or managing or directing persons engaged in, any
business in which Hyperion, or any of Hyperion's affiliates, is engaged at
the time of Employee's termination, whether independently or as an
employee, agent, consultant, advisor, independent contractor, proprietor,
partner, officer, director or otherwise; or
ii. acquiring, having an ownership interest in, participating in the
financing, operation, management or control of, any entity that derives
more than fifteen percent (15%) of its gross revenues from any business in
which Hyperion, or any of Hyperion's affiliates, is engaged at the time of
Employee's termination, except for the ownership of one percent (1%), or
less, of any entity whose securities are freely tradable on an established
market.
f. Commencing on Employee's termination and continuing thereafter, Employee
shall not directly or indirectly, personally or through others, disparage
Hyperion, or any of its predecessors, any of their products or services, any of
Hyperion's current or former officers, directors or employees, nor make or
solicit any comments, statements, or the like to the media, on the internet, or
to others that may be considered derogatory or detrimental to the good name or
business reputation of any of the foregoing parties and entities.
g. Employee acknowledges and agrees that Employee's failure to perform any of
Employee's covenants in this section would cause irreparable injury to Hyperion,
and cause damages to Hyperion that would be difficult or impossible to ascertain
or quantify. Accordingly, without limiting any other remedies that may be
available with respect to any breach of this Agreement, Employee consents to the
entry of an injunction (without bond) to restrain any breach of this section.
h. The covenants in this section shall survive any termination or expiration
of this Agreement, and the termination of Employee's Employment with Hyperion,
for any reason.
6. GENERAL
a. Hyperion may assign its rights under this Agreement to any entity that
assumes Hyperion's obligations hereunder in connection with any sale or transfer
of all or a substantial portion of Hyperion's assets to such entity, and such an
assignment shall be binding upon any successor (whether direct or indirect and
whether by purchase, lease, merger, consolidation, liquidation or otherwise) to
all or substantially all of Hyperion's business and/or assets. This Agreement
and all rights and obligations of Employee hereunder are personal to Employee
and may not be transferred or assigned by Employee at any time. However, subject
to the forgoing and where expressly permitted under this Agreement, all rights
of Employee 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.
b. The validity, performance and construction of this Agreement shall be
governed by the laws of the State of California, USA (excluding its conflict of
laws provisions). Santa Xxxxx County, California shall be the appropriate venue
and jurisdiction for the resolution of disputes hereunder.
c. All notices or communications to be given under this Agreement shall be in
writing and shall be deemed delivered upon hand delivery, upon delivery by a
courier service, upon acknowledged facsimile communication, or three (3) days
after deposit in the United States mail, postage prepaid, by certified,
registered or first class mail. In the case of Employee, notices shall be
addressed to Employee at the home address provided by Employee, or which
Employee most recently communicated to Hyperion in writing, and in the case of
Hyperion, notices shall be addressed to its corporate headquarters and directed
to the attention of the general counsel.
d. All payments made under this Agreement shall be subject to reduction to
reflect taxes or other charges required to be withheld by law.
e. In the event that any provision of this Agreement is prohibited by any law
governing its construction, performance or enforcement, such provision shall be
ineffective to the extent of such prohibition without invalidating thereby any
of the remaining provisions of the Agreement. The captions of sections herein
are intended for convenience only, and the same shall not be interpretive of the
content of such section.
f. In the event of any dispute or claim relating to or arising out of
Employee's employment relationship with Hyperion, this Agreement, or the
termination of Employee's employment with Hyperion, for any reason (including,
but not limited to, any claims of breach of contract, wrongful termination or
age, sex, race, national origin, disability or other discrimination or
harassment), the parties agree that all such disputes shall be fully, finally
and exclusively resolved by binding arbitration to the fullest extent permitted
by law. The arbitration will be conducted in accordance with the American
Arbitration Association's "National Rules for the Resolution of Employment
Disputes" then in effect. EMPLOYEE AND HYPERION HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO HAVE ANY AND ALL DISPUTES OR CLAIMS ADJUDICATED IN COURT OR BEFORE ANY
ADMINISTRATIVE AGENCY, OR TRIED IN COURT OR BEFORE ANY ADMINISTRATIVE AGENCY,
JUDGE OR JURY.
g. The terms and conditions of this Agreement may not be superseded,
modified, or amended except in writing which states that it is such a
modification, signed by Employee and an authorized officer of Hyperion (other
than Employee). No
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
Page 5 of 8
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.
h. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
i. This Agreement, the Exhibit, any additional terms ("Additional Terms")
specified in the Exhibit, Schedules A and B, the employee agreement (relating to
confidential information and intellectual property rights), and the offer letter
with the Offer Letter Date, constitute the entire agreement between the parties
as to the subject matter hereof, and supersede and replace all prior or
contemporaneous agreements, written or oral, regarding such subject matter. In
the event of any conflict between the terms of these documents, the terms of
this Agreement, unless expressly provided herein, shall have precedence.
ACCEPTED AND AGREED:
HYPERION SOLUTIONS CORPORATION EMPLOYEE
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxxx Xxxxx
-------------------------------------- -------------------------
signature of authorized representative signature
Xxxxx X. Xxxxx Xxxxxxx Xxxxx
------------------------------------- -------------------------
printed name printed name
Director
-------------------------------------
title
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
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[HYPERION LOGO]
EXECUTIVE EMPLOYMENT AGREEMENT
SCHEDULE A
Business Objects SA
Cognos, Inc.
Microsoft Corporation, Server Division
MicroStrategy Inc.
PeopleSoft, Inc.
SAP AG
Oracle Corporation, Applications Division
GEAC
Longview
Outlooksoft Corporation
Cartesis
SAS Institute Inc., Applications Division
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
Page 7 of 8
[HYPERION LOGO]
EXECUTIVE EMPLOYMENT AGREEMENT
SCHEDULE B
Alabama North Carolina
Alaska North Dakota
Arizona Ohio
Arkansas Oklahoma
California Oregon
Colorado Pennsylvania
Connecticut Rhode Island
Delaware South Carolina
Florida South Dakota
Georgia Tennessee
Hawaii Texas
Idaho Utah
Illinois Vermont
Indiana Virginia
Iowa Washington
Kansas West Virginia
Kentucky Wisconsin
Louisiana Wyoming
Maine District of Columbia
Maryland Australia
Massachusetts Brazil
Michigan Canada
Minnesota France
Mississippi Germany
Missouri Hong Kong
Montana Israel
Nebraska Japan
Nevada Mexico
New Hampshire Netherlands
New Jersey Singapore
New Mexico United Kingdom
New York
Executive Employment Agreement (v.10.0 7/04) - Hyperion Confidential
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