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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into on April 6, 2001, by and between XXXX
XXXXXX (the "Employee"), an individual residing at the address set forth on the
signature page hereof, and HYPERION SOLUTIONS CORPORATION, a Delaware
corporation (the "Company").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITION. For the term of his employment under this
Agreement ("Employment"), the Company agrees to employ the Employee in the
position of Chief Products Officer or in such other position as the Company
subsequently may assign to the Employee. The Employee shall report to the
Company's President and Chief Operating Officer or to such other person as the
Company subsequently may determine.
(b) OBLIGATIONS TO THE COMPANY. During the term of his
Employment, the Employee shall devote his full business efforts and time to the
Company. During the term of his Employment, without the prior written approval
of the Company (which shall not be unreasonably withheld), the 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 person or
entity or as a shareholder owning more than one percent of the stock of any
other corporation. The foregoing, however, shall not preclude the Employee from
engaging in reasonable community, school or charitable activities. The Employee
shall comply with the Company's policies and rules, as they may be in effect
from time to time during the term of his Employment.
(c) NO CONFLICTING OBLIGATIONS. The Employee represents
and warrants to the Company that he is under no obligations or commitments,
whether contractual or otherwise, that are inconsistent with his obligations
under this Agreement. The Employee 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. The Employee represents and warrants to the Company
that he has returned all property and confidential information belonging to any
prior employer.
2. CASH AND INCENTIVE COMPENSATION.
(a) SALARY. The Company shall pay the Employee as
compensation for his services a base salary at a gross annual rate of not less
than $280,000. Such salary shall be payable in accordance with the Company's
standard payroll procedures. (The annual compensation specified in this
Subsection (a), together with any increases in such compensation that the
Company may grant from time to time, is referred to in this Agreement as "Base
Compensation.").
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(b) INCENTIVE BONUSES. The Employee shall be eligible to
be considered for an annual incentive bonus with a target amount equal to 60.4%
of his Base Compensation. Such bonus (if any) shall be awarded based on
objective or subjective criteria established in advance by the Company's Board
of Directors (the "Board") or its Compensation Committee. The determinations of
the Board or such Committee with respect to such bonus shall be final and
binding.
3. EMPLOYEE BENEFITS. During the term of his Employment, the
Employee shall be eligible to participate in any employee benefit plans
maintained by the Company 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 providing the foregoing benefits to Employee, the
Company shall:
(i) reimburse the Employee for the reasonable and
customary cost of an annual physical examination.
(ii) provide to the Employee certain income tax services.
PricewaterhouseCoopers will prepare and sign the Employee's individual
income tax returns and provide the Employee with estimated tax
calculations. In addition, the tax professionals at
PricewaterhouseCoopers 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.
4. BUSINESS EXPENSES. During the term of his Employment, the
Employee shall be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with his duties
hereunder. The Company shall reimburse the Employee for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies. Any single
expenditure in excess of $10,000 shall require the prior approval of the
Company's Chief Executive Officer, President or Chief Financial Officer.
5. TERM OF EMPLOYMENT.
(a) BASIC RULE. The Company agrees to continue the
Employee's Employment, and the Employee agrees to remain in Employment with the
Company, from the Effective Time until the earlier of:
(i) The close of the applicable Initial Term or
Renewal Period, as determined under Subsection (b) below; or
(ii) The date when the Employee's Employment
terminates pursuant to Subsection (c) below.
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(b) INITIAL TERM AND RENEWAL PERIODS. The initial term of
this Agreement shall end on June 30, 2002 (the "Initial Term"). Thereafter this
Agreement shall automatically be renewed for successive 12-month periods (the
"Renewal Periods"), unless either party has given the other party written notice
of non-renewal not less than 90 days prior to the close of the Initial Term or
Renewal Period then in effect.
(c) EARLY TERMINATION. The Employee may terminate his
Employment at any time and for any reason (or no reason) by giving the Company
30 days' advance notice in writing. The Company may terminate the Employee's
Employment at any time and for any reason (or no reason), and with or without
Cause, by giving the Employee 30 days' advance notice in writing. The Company
may also terminate the Employee's active Employment due to Permanent Disability
by giving the Employee notice in writing. For all purposes under this Agreement,
"Permanent Disability" shall mean that the Employee, at the time notice is
given, has failed to perform his duties under this Agreement for 60 or more
consecutive days or for 90 or more days during any 12-month period as the result
of his incapacity due to physical or mental injury, disability or illness and
which the Company is unable to accommodate reasonably without undue hardship.
The Employee's Employment shall terminate automatically in the event of his
death.
(d) RIGHTS AND OBLIGATIONS UPON TERMINATION. Except as
expressly provided in Section 6, upon the termination of the Employee's
Employment pursuant to this Section 5, the Employee shall only be entitled to
the compensation, benefits and reimbursements described in Sections 2, 3 and 4
for the period preceding the effective date of the termination. No incentive
bonus under Section 2(b) shall be payable for the year in which the 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 the Company to the
Employee. The termination of this Agreement shall not limit or otherwise affect
the Employee's obligations under Section 7.
6. TERMINATION BENEFITS.
(a) GENERAL RELEASE. Any other provision of this
Agreement notwithstanding, Subsections (b) and (c) below shall not apply unless
the Employee has executed a general release (in a form prescribed by the
Company) of all known and unknown claims that he may then have against the
Company or persons affiliated with the Company. Such release shall include,
among other things, an agreement not to prosecute any legal action or other
proceeding based upon any of such claims. The Employee acknowledges that such
release may provide that in the event of a breach by the Employee of the terms
of the release or of Employee's obligations under Section 7 hereof, the Company
shall be entitled to recover from the Employee all amounts paid under
subsections (b) and (c) of this Section 6, as well as all litigation costs
(including attorneys' fees and expenses) incurred by the Company in connection
with such breach.
(b) SEVERANCE PAY. The Company shall pay the Employee his
Base Compensation for a 12-month period following the effective date of the
termination of his Employment (the "Continuation Period") if:
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(i) The Company terminates the Employee's
Employment under Section 5(c) for any reason other than Cause or
Permanent Disability; or
(ii) The Company was subject to a Corporate
Transaction/Change in Control during the term of this Agreement and,
within 12 months thereafter, the Employee resigns for Good Reason.
(iii) During the term of this Agreement, the
current Chief Executive Officer ("CEO") ceases to serve as the senior
executive officer of the Company, the Company's Board of Directors
appoints a new CEO and within six months of the first day of such new
CEO's employment with the Company, the Employee resigns because the
Company has significantly diminished the nature or scope of the
Employee's authority, duties or responsibilities in effect immediately
prior to the appointment of the new CEO.
Base Compensation under this Subsection (b) shall be paid at the rate in effect
at the time of the termination of Employment and in accordance with the
Company's standard payroll procedures.
(c) EMPLOYEE BENEFITS. If Subsection (b) above applies,
the Company shall continue the coverage of the Employee and his dependents (if
applicable) under the employee benefit plans described in Section 3 during the
Continuation Period. To the extent that such plans or the insurance contracts or
provider agreements associated with such plans do not permit the extension of
the Employee's coverage following the termination of his active employment, the
Company shall pay the Employee cash in an amount equal to the cost to the
Company of the coverage that cannot be provided. The cash payments shall be made
in accordance with Subsection (b) above.
(d) COBRA. If Subsection (b) above applies, and if the
Employee elects to continue his health insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") following the termination of his
Employment, then the date of the "qualifying event" for purposes of COBRA shall
be the Employee's last day of active employment.
(e) DEFINITION OF "CAUSE." For all purposes under this
Agreement, "Cause" shall mean:
(i) The Employee's failure to perform in a
satisfactory fashion one or more reasonable and lawful duties assigned
to the Employee by the Company under this Agreement, if such failure
continues for seven days or more after the Company has given the
Employee written notice describing such failure and advising him of the
consequences of such failure under this Agreement; provided that such
notice shall be required only with respect to the first such failure;
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(ii) The Employee's misconduct relating to the
Company's affairs, if such misconduct continues for seven days or more
after the Company has given the Employee written notice describing such
misconduct and advising him 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 days or more with respect to acts for which an employee's
employment is specifically terminable under the Company's policies and
procedures applicable to all employees;
(iii) The Employee's conviction of, or a plea of
"guilty" or "no contest" to, a felony, or a misdemeanor which calls
into question the Employee's honesty, under the laws of the United
States or any state thereof;
(iv) Any breach of this Agreement, the Employee
Nondisclosure Agreement and Proprietary Rights Assignment between the
Employee and the Company, or any other agreement between the Employee
and the Company;
(v) Threats or acts of violence or harassment
directed at any present, former or prospective employee, independent
contractor, vendor, customer or business partner of the Company; or
(vi) Fraud or embezzlement involving the assets
of the Company or its affiliates, customers or suppliers.
The foregoing shall not be deemed an exclusive list of all acts or omissions
that the Company may consider as grounds for the termination of the Employee's
Employment with Cause. Termination for Cause hereunder shall be deemed to be
termination for "Misconduct" under the Company's stock option plans and related
agreements.
(f) DEFINITION OF "CORPORATE TRANSACTION/CHANGE IN
CONTROL." For all purposes under this Agreement, "Corporate Transaction/Change
in Control" shall mean any transaction under clauses (i) or (ii) below:
(i) a change in ownership or control of the
Company effected through either of the following transactions:
(A) the acquisition, directly or
indirectly, by any person or related group of persons (other
than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with,
the Company), 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 the
Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's stockholders
which the Board does not recommend such stockholders to
accept, or
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(B) a change in the composition of the
Board over a period of thirty-six (36) consecutive months or
less such that a majority of the Board members ceases, by
reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have
been Board members continuously since the beginning of such
period or (B) have been elected or nominated for election as
Board members during such period by at least a majority of the
Board members described in clause (A) who were still in office
at the time the Board approved such election or nomination,
(ii) either of the following stockholder-approved
transactions to which the Company is a party:
(A) a merger or consolidation in which
securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding
securities are transferred to a person or persons different
from the persons holding those securities immediately prior to
such transaction; or
(B) the sale, transfer or other
disposition of all or substantially all of the Company's
assets in complete liquidation or dissolution of the Company.
(g) DEFINITION OF "GOOD REASON." For all purposes under
this Agreement, "Good Reason" shall mean:
(i) A significant diminution in the nature or
scope of the Employee's authority, duties or responsibilities in effect
immediately prior to the Corporate Transaction/Change in Control;
(ii) Any reduction in the rate of the Employee's
Base Compensation in effect immediately prior to the Corporate
Transaction/Change in Control or a reduction of 25% or more in the
value of the Employee's aggregate compensation and benefits in effect
immediately prior to the Corporate Transaction/Change in Control;
(iii) The relocation of the Employee's principal
place of employment to a site more than 25 miles removed from his
principal place of employment immediately prior to the Corporate
Transaction/Change in Control; or
(iv) An increase of 25% or more in the average
amount of time per month that the Employee is required to be away from
his principal place of employment, relative to the average amount of
time per month that the Employee was required to be away from his
principal place of employment immediately prior to the Corporate
Transaction/Change in Control.
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7. EMPLOYEE'S COVENANTS.
(a) NON-SOLICITATION OF EMPLOYEES. During the period
commencing on the date of this Agreement and continuing until the second
anniversary of the date when the Employee's Employment terminated for any
reason, the Employee shall not interfere with the business of the Company by,
directly or indirectly, personally or through others, soliciting or attempting
to solicit (on the Employee's own behalf or on behalf of any other person or
entity) the employment of any employee of the Company or any of the Company's
affiliates. During such period, the Employee shall not encourage or induce, or
take any action that has the effect of encouraging or inducing, any employee of
the Company or any of the Company's affiliates to terminate his or her
employment.
(b) LIMITATION ON HIRING OF EMPLOYEES. For a period of
120 days following the date when the Employee's Employment terminated for any
reason, the Employee shall not hire, or assist any other person in hiring, any
person who was an employee of the Company on the date when the Employee's
Employment terminated to work at the Employee's new place of employment in a
position that reports either directly to the Employee or to any other person who
reports directly to the Employee.
(c) NON-SOLICITATION OF CUSTOMERS. The parties agree that
information relating to the identities, key contact personnel, preferences,
needs and circumstances of the Company's customers are trade secrets belonging
to the Company that are, and necessarily will be, used by the Employee in the
solicitation of business from the Company's customers. As a result, during the
period commencing on the date of this Agreement and continuing until the second
anniversary of the date when the Employee's Employment terminated for any
reason, the Employee shall not, directly or indirectly, personally or through
others, solicit or attempt to solicit (on the Employee's own behalf or on behalf
of any other person or entity) the business of any customer of the Company, or
of any of the Company's affiliates, for services or products similar to those
sold by the Company.
(d) NON-DISCLOSURE. The Employee has entered into an
Employee Nondisclosure Agreement and Proprietary Rights Assignment with the
Company, which is incorporated herein by reference and survives the termination
or expiration of this Agreement. Given the nature of the Employee's position as
Chief Products Officer of the Company, the parties agree that it would be
practically impossible for the Employee to work as a products executive for
certain companies, including their subsidiaries and affiliates, that provide
services or products that are similar to those of the Company without disclosing
the Company's trade secrets. A list of such companies, which may be amended from
time to time by written notice of the Company, is attached hereto as Schedule A.
(e) NON-COMPETITION. During the period commencing on the
date of this Agreement and continuing until the second anniversary of the date
when the Employee's Employment terminated for any reason, the Employee shall
not, directly or indirectly (other than on behalf of the Company or with the
Company's prior written consent), engage in a Competitive Business Activity in
any of the locations listed in Schedule B attached hereto. If Section 6(b)
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applies, the foregoing two year period shall be reduced to one year. The term
"Competitive Business Activity" shall mean:
(i) Engaging in, or managing or directing
persons engaged in, any business in which the Company or any of the
Company's affiliates is engaged at the time of the termination of the
Employee's Employment, whether independently or as an employee, agent,
consultant, advisor, independent contractor, proprietor, partner,
officer, director or otherwise;
(ii) Acquiring or having an ownership interest in
any entity that derives more than 15% of its gross revenues from any
business in which the Company or any of the Company's affiliates is
engaged at the time of the termination of the Employee's Employment,
except for ownership of 1% or less of any entity whose securities are
freely tradable on an established market; or
(iii) Participating in the financing, operation,
management or control of any firm, partnership, corporation, entity or
business described in Paragraph (ii) above.
(f) NON-DISPARAGEMENT. Commencing on the date when the
Employee's Employment terminated for any reason and continuing thereafter, the
Employee shall not directly or indirectly, personally or through others,
disparage the Company or any of its predecessors, including each of their past,
current, or future board of directors or senior management or any of their
products or services.
(g) INJUNCTIVE RELIEF. The Employee acknowledges and
agrees that his failure to perform any of his covenants in this Section 7 would
cause irreparable injury to the Company and cause damages to the Company 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, the Employee consents to the entry of an injunction to restrain
any breach of this Section 7.
(h) SURVIVAL. The covenants in this Section 7 shall
survive any termination or expiration of this Agreement and the termination of
the Employee's Employment with the Company for any reason.
8. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. This Agreement 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
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) EMPLOYEE'S SUCCESSORS. This Agreement and all rights
of the Employee hereunder shall inure to the benefit of, and be enforceable by,
the Employee's personal
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or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
9. MISCELLANEOUS PROVISIONS.
(a) NOTICE. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when (i) personally delivered, (ii) delivered to the U.S. Postal
Service for delivery by registered or certified mail or (iii) delivered to a
comparable private service offering guaranteed deliveries in the ordinary course
of its business. Notice under clauses (ii) and (iii) shall be valid only if
delivery charges have been prepaid and a return receipt will be furnished. In
the case of the Employee, notice under clauses (ii) and (iii) shall be addressed
to him at the home address which he most recently communicated to the Company in
writing. In the case of the Company, notice under clauses (ii) and (iii) shall
be addressed to its corporate headquarters and directed to the attention of its
Secretary.
(b) MODIFICATIONS AND WAIVERS. No provision of this
Agreement shall be modified, waived or discharged unless the modification,
waiver or discharge is agreed to in writing and signed by the Employee and by an
authorized officer of the Company (other than the Employee). 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.
(c) WHOLE AGREEMENT. This Agreement supersedes any prior
employment agreement between the Employee and the Company. No other agreements,
representations or understandings (whether oral or written and whether express
or implied) which are not expressly set forth in this Agreement have been made
or entered into by either party with respect to the subject matter hereof. This
Agreement and the Employee Nondisclosure Agreement and Proprietary Rights
Assignment between the Employee and the Company contain the entire understanding
of the parties with respect to the subject matter hereof.
(d) WITHHOLDING TAXES. All payments made under this
Agreement shall be subject to reduction to reflect taxes or other charges
required to be withheld by law.
(e) CHOICE OF LAW. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Connecticut without regard to its choice of law principles.
(f) SEVERABILITY. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) ARBITRATION. Subject to Section 7(g), any controversy
or claim arising out of or relating to this Agreement or the breach thereof, or
the Employee's Employment or the termination thereof, shall be settled in
Fairfield County, Connecticut, by arbitration in accordance with the National
Rules for the Resolution of Employment Disputes of the American
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Arbitration Association. The decision of the arbitrator shall be final and
binding on the parties, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The parties hereby agree
that the arbitrator shall be empowered to enter an equitable decree mandating
specific enforcement of the terms of this Agreement. The Company and the
Employee shall share equally all fees and expenses of the arbitrator; provided,
however, that the Company or the Employee, as the case may be, shall bear all
fees and expenses of the arbitrator and all of the legal fees and out-of-pocket
expenses of the other party if the arbitrator determines that the claim or
position of the Company or the Employee, as the case may be, was without
reasonable foundation. The Employee hereby consents to personal jurisdiction of
the state and federal courts located in the State of Connecticut for any action
or proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
(h) NO ASSIGNMENT. This Agreement and all rights and
obligations of the Employee hereunder are personal to the Employee and may not
be transferred or assigned by the Employee 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) COUNTERPARTS. 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.
(j) GENDER. The masculine, feminine and neuter gender,
and the singular or plural number, shall be deemed to include the others
whenever the context so indicates.
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IN WITNESS WHEREOF, 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.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
HYPERION SOLUTIONS CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Chairman and Chief Executive Officer
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SCHEDULE A
Adaytum Software
Applix, Inc
Broadbase Software, Inc.
Business Objects
Cognos, Inc.
Computer Associates International, Inc.
Corporate Planning
Comshare Incorporated
E.piphany, Inc.
Frango AB
Gentia Software
Great Plains Software, Inc.
Information Builders, Inc.
Xxxxxx Software
Kenan Systems Corporation
Kopcke and Associates
MicroStrategy Inc.
Microsoft Corporation
MIK
MIS AG
Oracle Corporation
PeopleSoft, Inc.
SAP AG
SAS Institute, Inc.
Showcase Corporation
United Information Technologies, Inc.
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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
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