Exhibit 10.24
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into on October 17, 2001, by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (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
President and Chief Operating. The Employee shall report to the Company's Chief
Executive Officer.
(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 $340,000.
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.").
(b) INCENTIVE BONUSES. The Employee shall be eligible to be considered for an
annual incentive bonus with a target amount equal to 50% 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 reimburse the Employee for the reasonable and customary cost of an annual
physical examination.
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.
(b) INITIAL TERM AND RENEWAL PERIODS. The initial term of this Agreement shall
end on December 31, 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:
(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 health 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 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;
(ii) 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;
(iii) Any breach of this Agreement, the Employee Proprietary
Information Agreement between the Employee and the Company, or any other
agreement between the Employee and the Company;
(iv) 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
(v) 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 ▇▇▇▇ ▇▇▇) 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
(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 change in Employee's position with the Company which
materially reduces his or her level of responsibility in effect immediately
prior to the Corporate Transaction/Change in Control;
(ii) A reduction in Employee's level of compensation (including base
salary, fringe benefits and participation in corporate-performance based
bonus or incentive programs) in effect immediately prior to the Corporate
Transaction/Change in Control by more than fifteen percent (15%); or
(iii) A relocation of Employee's place of employment prior to the
Corporate Transaction/Change in Control by more than fifty (50) miles,
provided and only if such change, reduction or relocation is effected by the
Company without Employee's consent.
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 or prospective customer, of the Company, or of any of the Company's
affiliates, for services or products similar to those sold by the Company. For
purposes of this provision, a "prospective customer" shall mean any person or
entity whom the Employee was involved in contacting or soliciting to become a
customer during the six month period prior to the termination of the Employee's
Employment.
(d) NON-DISCLOSURE. The Employee has entered into an Employee
Proprietary Information Agreement 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 President and Chief Operating Officer
of the Company, the parties agree that, during the period commencing on the date
the Employee's Employment is terminated for any reason and continuing until the
third anniversary of such date, it would be practically impossible for the
Employee to work as a president or chief operating officer 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. The following provision shall apply only to the
extent that the Employee resides and has his principal place of employment
outside of the State of California. 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)
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 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 Proprietary Information Agreement 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 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.
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.
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Address:
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HYPERION SOLUTIONS CORPORATION
By:
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Name:
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Title:
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SCHEDULE A
Accrue
Actuate
Adaytum Software
Alphablox
Applix, Inc
Brio
Business Objects
Cognos, Inc.
Computer Associates International, Inc.
Comshare Incorporated
Corporate Planning
E.piphany, Inc.
Frango AB
Gentia Software
Informatica
Information Builders, Inc.
Kana
Kenan Systems Corporation
Kopcke and Associates
▇▇▇▇▇▇ Software
Microsoft Corporation
MicroStrategy Inc.
MIK
MIS AG
Oracle Corporation
PeopleSoft, Inc.
Sagent
SAP AG
SAS Institute, Inc.
SPSS
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