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Exhibit 10.20
June 16, 1999
Dear Xxxx:
This letter (the "Agreement") is to confirm the agreement
between you and Hyperion Solutions Corporation (the "Company") regarding your
separation from the Company.
1. You understand and agree that your employment with the
Company terminated on June 2, 1999 (the "Termination
Date"). Provided that you do not revoke this Agreement
within the revocation period set forth in paragraph 14
below, the Company shall:
(a) within three (3) business days following the
effective date of this Agreement, pay you a lump
sum severance payment of Two Hundred Thirty-Five
Thousand One Hundred Sixty-Six and 67/100 Dollars
($235,166.67), less all applicable withholdings;
such payment shall be wire transferred to the
account into which the Company has previously
deposited your salary and other compensation
payments;
(b) pay your COBRA payments through and until June 2,
2000 if you elect to continue medical insurance
coverage for you, your wife and son pursuant to
COBRA; and
(c) cause all 80,000 unexercised options granted to you
prior to August 24, 1998 to become exercisable
immediately for fully vested shares.
You agree that the remaining 50,000 options granted to
you on September 9, 1998 and the 16,000 options granted
to you on February 24, 1999 terminated on June 2, 1999,
and will never become exercisable. You further agree
that the options described in subparagraph (c) above
will terminate on September 2, 1999.
The Company will use its best efforts to, within five
(5) business days of the effective date of this
Agreement, present to the Board for its adoption Board
resolutions regarding the Company's obligations set
forth in subparagraph (c) above.
2. You agree that you have been paid all of your accrued
but unused vacation and all of your salary and
commissions earned through your Termination Date, and
except as expressly set forth herein, or in the
Indemnification Agreement entered into between you and
the Company concurrent with the execution of this
Agreement (the "Indemnification Agreement"), a
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copy of which is attached hereto as Exhibit A, you are
not entitled to any further money or benefits from the
Company.
3. In consideration for the mutual promises and
consideration described in this letter, you and the
Company hereby waive and release and promise never to
assert any claims or causes of action, whether or not
now known, against the other party or his or its past or
present predecessors, successors, subsidiaries,
officers, directors, agents, employees, employee benefit
plans and assigns, with respect to any matter, including
but not limited to, any matter arising out of or
connected with your employment with the Company or the
termination of that employment, including without
limitation, claims of wrongful discharge, emotional
distress, defamation, fraud, breach of contract, breach
of the covenant of good faith and fair dealing, any
claims of discrimination or harassment based on sex,
age, race, national origin, disability or on any other
basis, under Title VII of the Civil Rights Act of 1964,
as amended, the California Fair Employment and Housing
Act, the Age Discrimination in Employment Act of 1967,
as amended, and all other laws and regulations relating
to employment.
4. You and the Company expressly waive and release any and
all rights and benefits under Section 1542 of the Civil
Code of the State of California (or any analogous law of
any other state), which reads as follows: "A general
release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the
time of executing the release, which, if known by him,
must have materially affected his settlement with the
debtor."
5. Nothing contained in this letter shall constitute or be
treated as an admission by you or the Company of
liability, of any wrongdoing, or of any violation of
law.
6. At all times in the future, you will remain bound by the
Company's Proprietary Information and Invention
Agreement signed by you, a copy of which is attached as
Exhibit B.
7. At all times in the future, you agree not to make any
derogatory statements regarding the Company or any of
the members of the Board to any third party. The Company
and Board also agree that neither the Board nor any
individual member of the Board or present section 16
officer of the Company shall make any derogatory
statements regarding you to any party outside the
Company; provided, however, that nothing in this
Agreement shall prohibit the parties from responding to
any inquiry regarding your separation from the Company
by stating that you and the Board had different views
regarding the management of the Company.
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8. You agree that during the two (2) year period commencing
on the effective date of this Agreement, you shall not
directly or indirectly, personally or on behalf of any
other party:
(a) engage in a Competitive Business Activity in any of
the locations listed in Exhibit C attached hereto.
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 was
engaged as of the Termination Date, 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
was engaged as of the Termination Date,
except for ownership of 1% or less of any
entity whose securities are freely tradable
on an established market;
(iii) participating in the financing, operation,
management or control of any firm,
partnership, corporation, entity or business
described in Paragraph (ii) above; or
(b) solicit or attempt to solicit either:
(i) any employee of the Company or any of the
Company's affiliates to terminate the
employee's employment with the Company; or
(ii) the business of any customer of the Company
or its affiliates with whom you had contact
during your employment with the Company.
9. At all times in the future the Company and you will
remain bound by the Indemnification Agreement,
including, without limitation, the Company's obligation
to indemnify you against all expenses and costs as
expressly set forth in the Indemnification Agreement.
10. You agree that you will not disclose to others the fact
or terms of this letter, except that you may disclose
such information to: (a) your attorney or accountant in
order for such individuals to render services to you; or
(b) your spouse. You further agree that you will
instruct such individuals that they may not disclose any
such information to any other party at any time in the
future.
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11. You represent and warrant that, except for the IBM
Thinkpad computer, which the Company hereby agrees may
be retained by you, you have returned to the Company all
of its property, including, but not limited to, any and
all Company files, documents (including any written or
electronic versions thereof) and physical property.
12. You agree that except as expressly provided in this
letter, this letter renders null and void any and all
prior agreements between you and the Company. You and
the Company agree that this Agreement, together with
Exhibits A, B and C, constitutes the entire agreement
between you and the Company regarding the subject matter
of this Agreement, and that this Agreement may be
modified only in a written document signed by you and a
duly authorized officer of the Company.
13. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
14. You have up to twenty-one (21) days after receipt of
this letter within which to review it, and to discuss it
with an attorney of your own choosing regarding whether
or not you wish to execute it. Furthermore, you have
seven (7) days after you have signed this letter during
which time you may revoke this Agreement.
15. If you wish to revoke this Agreement, you may do so by
delivering a letter of revocation to me. Because of this
revocation period, you understand that the agreement set
forth in this letter shall not become effective or
enforceable until the eighth day after the date you sign
this letter.
16. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together
shall constitute one agreement.
Please indicate your agreement with the above terms by signing
below.
Sincerely,
/s/ Xxxxx Xxxxxxxxx
____________________________________________
Xxxxx Xxxxxxxxx
My agreement with the above terms is signified by my signature
below. Furthermore, I acknowledge that I have read and understand this letter
and that I sign this release of all claims voluntarily, with full appreciation
that at no time in the future may I pursue any of the rights I have waived in
this release.
6/16/99 /s/ Xxxxxxx Xxxxx
Dated:_________________________ ____________________________________________
Xxxxxxx Xxxxx
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