exv10w2



 






Exhibit 10.2




HYPERION SOLUTIONS CORPORATION




2004 EQUITY INCENTIVE PLAN




NOTICE OF GRANT OF RESTRICTED STOCK




<<Name>>

<<Address>>



     Unless otherwise defined herein, the terms defined in the 2004 Equity Incentive
Plan shall have the same defined meanings in the attached Restricted Stock Purchase
Agreement (the “Agreement”).



     You have been granted the right to purchase Common Stock of the Company, subject to the terms
and conditions of the Plan and this Agreement, as follows:



	 	 	 	 	 	 	 	 	 
	Grant Number
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Date of Grant

	 	 	 	<<DateOfGrant>>
	 	 	 
	 
	 	 	 	 
	Exercise Price Per Share

	 	$
	 	.001
	 	 	 
	 
	 	 	 	 
	Total Number of Shares Subject

	 	 	 	<<NumberOfShares>>
	 	 	 
	    to This Stock Purchase Right
	 	 	 	 






     YOU MUST EXERCISE THIS STOCK PURCHASE RIGHT BEFORE THE EXPIRATION DATE OR IT WILL TERMINATE
AND YOU WILL HAVE NO FURTHER RIGHT TO PURCHASE THE SHARES.



     This Stock Purchase Right is granted under and subject to all of the terms, restrictions and
rights set forth in both the Plan itself and the Restricted Stock Purchase Agreement between
Hyperion and the Purchaser.



 









 





HYPERION SOLUTIONS CORPORATION




RESTRICTED STOCK PURCHASE AGREEMENT




     This Restricted Stock Purchase Agreement (this “Agreement”) is made and entered into as of
«DateOfAgreement» by and between «Name» (“Purchaser”) and Hyperion Solutions Corporation, a
Delaware Corporation (the “Company”). All terms used herein without definition shall have the
meanings ascribed to them in the Company’s 2004 Equity Incentive Plan (the “Plan”).



     WHEREAS, the Purchaser is an executive Employee, and the Purchaser’s continued participation
is considered by the Company to be important for the Company’s continued growth; and



     WHEREAS, in order to give the Purchaser an opportunity to acquire an equity interest in the
Company as an incentive for the Purchaser to participate in the affairs of the Company, the
Administrator has granted to the Purchaser a Stock Purchase Right subject to the terms and
conditions of the Plan and the Notice of Grant, which are incorporated herein by reference.



     NOW THEREFORE, the parties agree as follows:



          1. Purchase and Sale of Stock. The Company hereby sells to the Purchaser and the
Purchaser hereby purchases from the Company «NumberOfShares» shares of the Company’s Common Stock
(the “Shares”) at a purchase price equal to $0.001 per share (the “Purchase Price”). The Company
hereby acknowledges receipt of the Purchase Price.



          2. Repurchase Option.



               a. In the event the Purchaser ceases to be an Employee for any or no reason (including death
or disability) before all of the Shares are released from the Company’s Repurchase Option (see
Section 3), the Company shall, upon the date of such termination (as reasonably fixed and
determined by the Company) have an irrevocable, exclusive option (the “Repurchase Option”) to
repurchase at a price equal to $0.001 per share, up to that number of shares which constitute the
Unvested Shares (as defined in Section 3). The Repurchase Option shall be exercised by the Company
by delivering written notice to the Purchaser or the Purchaser’s executor (with a copy to the
Escrow Holder), together with payment therefor. Upon delivery of such notice and payment, the
Company shall become the legal and beneficial owner of the Shares being repurchased and all rights
and interests therein or relating thereto, and the Company shall have the right to retain and
transfer to its own name the number of Shares being repurchased by the Company.



               b. Whenever the Company shall have the right to repurchase Shares hereunder, the Company may
designate and assign one or more employees, officers, directors or stockholders of the Company or
other persons or organizations to exercise all or a part of the Company’s acquisition rights under
this Agreement.



          3. Release of Shares From Repurchase Option.



          <<Para3_ReleaseOfShares>>



2









 





               a. Any of the Shares that have not yet been released from the Repurchase Option are referred
to herein as “Unvested Shares.”



               b. The Shares that have been released from the Repurchase Option shall be delivered to the
Purchaser at the Purchaser’s request (see Section 5).



          4. Restriction on Transfer. Except for the escrow described in Section 5 or the
transfer of the Shares to the Company or its assignees contemplated by this Agreement, none of the
Shares or any beneficial interest therein shall be transferred, encumbered or otherwise disposed of
in any way until such Shares are released from the Company’s Repurchase Option in accordance with
the provisions of this Agreement, other than by will or the laws of descent and distribution.



          5. Escrow of Shares.



               a. To ensure the availability for delivery of the Purchaser’s Unvested Shares upon repurchase
by the Company pursuant to the Repurchase Option, the Company shall, upon execution of this
Agreement, deliver and deposit with the Secretary of the Corporation as an escrow holder designated
by the Company (the “Escrow Holder”) the share certificates representing the Unvested Shares,
together with the stock assignment duly endorsed by the Purchaser in blank, attached hereto as
Exhibit 1. The Unvested Shares and stock assignment shall be held by the Escrow Holder, pursuant
to the Joint Escrow Instructions of the Company and Purchaser attached hereto as Exhibit 2, until
such time as the Company’s Repurchase Option expires. As a further condition to the Company’s
obligations under this Agreement, the Company may require the spouse of Purchaser, if any, to
execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit 3.



               b. The Escrow Holder shall not be liable for any act it may do or omit to do with respect to
holding the Unvested Shares in escrow while acting in good faith and in the exercise of its
judgment.



               c. If the Company or any assignee exercises the Repurchase Option hereunder, the Escrow
Holder, upon receipt of written notice of such exercise from the proposed transferee, shall take
all steps necessary to accomplish such transfer.



               d. When the Repurchase Option has been exercised or expires unexercised or a portion of the
Shares has been released from the Repurchase Option, upon request the Escrow Holder shall promptly
cause a new certificate to be issued for the released Shares and shall deliver the certificate to
the Company or the Purchaser, as the case may be.



               e. Subject to the terms hereof, the Purchaser shall have all the rights of a stockholder with
respect to the Shares while they are held in escrow, including without limitation, the right to
vote the Shares and to receive any cash dividends declared thereon. If, from time to time during
the term of the Repurchase Option, there is (i) any stock dividend, stock split or other change in
the Shares, or (ii) any merger or sale of all or substantially all of the assets or other
acquisition of the Company, any and all new, substituted or additional securities to which the
Purchaser is entitled by reason of the Purchaser’s ownership of the Shares shall be immediately
subject to this escrow, deposited with the Escrow Holder and included thereafter as “Shares” for
purposes of this Agreement and the Repurchase Option.



3










 





          6. Legends. The share certificate evidencing the Shares, if any, issued hereunder
shall be endorsed with the following legend (in addition to any legend required under applicable
state securities laws):




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.



          7. Adjustment for Stock Split. All references to the number of Shares in this
Agreement shall be appropriately adjusted to reflect any stock split, stock dividend or other
change in the Shares that may be made by the Company after the date of this Agreement.



          8. Tax Consequences. The Purchaser has reviewed with the Purchaser’s own tax
advisors the federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Purchaser is relying solely on such advisors and
not on any statements or representations of the Company or any of its agents. The Purchaser
understands that the Purchaser (and not the Company) shall be responsible for the Purchaser’s own
tax liability that may arise as a result of the transactions contemplated by this Agreement. The
Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as amended (the
“Code”), taxes as ordinary income the difference between the purchase price of the Shares and
the Fair Market Value of the Shares as of the date any restrictions on the Shares lapse. In
this context, “restriction” includes the right of the Company to repurchase the Shares pursuant to
the Repurchase Option. The Purchaser understands that the Purchaser may elect to be taxed at the
time the Shares are acquired rather than when and as the Repurchase Option expires by filing an
election under Section 83(b) of the Code with the IRS within 30 days from the date of purchase.


THE PURCHASER ACKNOWLEDGES THAT (i) MULTIPLE PROTECTIVE ELECTIONS MAY BE FILED UNDER SECTION
83(b) AND (ii) IT IS THE PURCHASER’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO FILE TIMELY THE
ELECTION UNDER SECTION 83(b) WITHIN 30 DAYS AFTER THE DATE OF THIS AGREEMENT.




     9. General Provisions.



               a. This Agreement shall be governed by the internal substantive laws, but not the
choice of law rules of California. This Agreement, subject to the terms and conditions of the Plan
and the Notice of Grant, represents the entire agreement between the parties with respect to the
acquisition of the Shares by the Purchaser. In the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Agreement, the terms and conditions of



4









 




the Plan shall prevail. In the event of a conflict between the terms and conditions of this
Agreement and the terms and conditions of the Notice of Grant, including without limitations the
purchase price and escrow provisions contained herein, the terms and conditions of this Agreement
shall prevail.




               b. Any notice, demand or request required or permitted to be given by either the Company or
the Purchaser pursuant to the terms of this Agreement shall be in writing and shall be deemed given
when delivered personally or deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the parties at the addresses of the parties set forth at the end of this Agreement or
such other address as a party may request by notifying the other in writing. Any notice to the
Escrow Holder shall be sent to the Company’s address with a copy to the other party hereto.



               c. The rights of the Company under this Agreement shall be transferable to any one or more
persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and
be enforceable by the Company’s successors and assigns. The rights and obligations of the Purchaser
under this Agreement may only be assigned with the prior written consent of the Company.



               d. Either party’s failure to enforce any provision of this Agreement shall not in any way be
construed as a waiver of any such provision, nor prevent that party from thereafter enforcing any
other provision of this Agreement. The rights granted both parties hereunder are cumulative and
shall not constitute a waiver of either party’s right to assert any other legal remedy available to
it.



               e. The Purchaser agrees upon request to execute any further documents or instruments necessary
or desirable to carry out the purposes or intent of this Agreement.



               f. PURCHASER ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO SECTION 3 HEREOF
IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE AT THE WILL OF THE COMPANY (AND NOT THROUGH THE
ACT OF BEING HIRED OR ACQUIRING SHARES HEREUNDER). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE FOR THE
VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH PURCHASER’S RIGHT OR THE
COMPANY’S RIGHT TO TERMINATE PURCHASER’S RELATIONSHIP AS AN EMPLOYEE AT ANY TIME, WITH OR WITHOUT
CAUSE.



     By Purchaser’s signature below, Purchaser represents that he or she is familiar with the terms
and provisions of the Plan, and hereby accepts this Agreement subject to all of the terms and
provisions thereof. Purchaser has reviewed the Plan and this Agreement in their entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Agreement and fully
understands all provisions of this Agreement. Purchaser agrees to accept as binding, conclusive
and final all



5









 




decisions or interpretations of the Administrator upon any questions arising under the Plan or this
Agreement. Purchaser further agrees to notify the Company upon any change in the residence
indicated in the Notice of Grant.




	 	 	 	 	 	 	 	 	 
	Send Notices to the following addresses:	 	To Hyperion At:
	 	 	General Counsel
	 	 	Hyperion Solutions Corporation
	 	 	5450 Great America Parkway
	 	 	Santa Clara, CA 95054
	 
	 	 	 	 
	<<Name>>
	 	 	 	 
	<<Address>>
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy of the notice sent to:	 	Stock Administrator
	 	 	Hyperion Solutions Corporation
	 	 	900 Long Ridge Road
	 	 	Stamford, CT 06902
	 
	 	 	 	 
	For Purchaser (if any):
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 
	DATED: <<DateOfAgreement>>
	 	 	 	 
	 
	 	 	 	 
	PURCHASER	 	HYPERION SOLUTIONS CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	 

	 	 	 
	<<Name>>

	 	Name:	 	 
	

	 	 	 
	

	 	Title:	 	 
	 

	 	 	 






6









 






EXHIBIT 1




ASSIGNMENT SEPARATE FROM CERTIFICATE




     FOR VALUE RECEIVED I, ___, hereby sell, assign and transfer unto
___(___) shares of the Common Stock of Hyperion
Solutions Corporation standing in my name of the books of said corporation represented by
Certificate No. ___herewith and do hereby irrevocably constitute and appoint
___to transfer the said stock on the books of the within named corporation with
full power of substitution in the premises.



     This Stock Assignment may be used only in accordance with the Restricted Stock Purchase
Agreement (the “Agreement”) between Hyperion Solutions Corporation and the undersigned dated
___, 20___.



Dated: _______________, 20__




Signature: ______________________________



INSTRUCTIONS: Please do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise the Repurchase Option, as set forth in the
Agreement, without requiring additional signatures on the part of the Purchaser.





7









 








EXHIBIT 2




JOINT ESCROW INSTRUCTIONS




<<DateOfAgreement>>




Corporate Secretary

Hyperion Solutions Corporation

5450 Great America Parkway

Santa Clara, CA 95054



Dear Corporate Secretary:



     As Escrow Agent for both Hyperion Solutions Corporation, a Delaware corporation (the
“Company”), and the undersigned purchaser (the “Purchaser”), you are hereby authorized and directed
to hold the documents delivered to you pursuant to the terms of that certain Restricted Stock
Purchase Agreement (“Agreement”) between the Company and the undersigned, in accordance with the
following instructions:



     1. In the event the Company and/or any assignee of the Company (referred to collectively as
the “Company”) exercises the Company’s Repurchase Option set forth in the Agreement, the Company
shall give to Purchaser and you a written notice specifying the number of shares of stock to be
repurchased and the time for a closing hereunder at the principal office of the Company. Purchaser
and the Company hereby irrevocably authorize and direct you to close the transaction contemplated
by such notice in accordance with the terms of said notice.



     2. At the closing, you are directed (a) to date the stock assignments necessary for the
transfer in question, (b) to fill in the number of shares being transferred, and (c) to deliver
same, together with the certificate evidencing the shares of stock to be transferred, to the
Company or its assignee pursuant to the exercise of the Company’s Repurchase Option.



     3. Purchaser irrevocably authorizes the Company to deposit with you any certificates
evidencing shares of stock to be held by you hereunder and any additions and substitutions to said
shares as defined in the Agreement. Purchaser does hereby irrevocably constitute and appoint you
as Purchaser’s attorney-in-fact and agent for the term of this escrow to execute with respect to
such securities all documents necessary or appropriate to make such securities negotiable and to
complete any transaction herein contemplated, including but not limited to the filing with any
applicable state blue sky authority of any required applications for consent to, or notice of
transfer of, the securities. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a stockholder of the Company while the stock is held by you.



     4. Upon written request of the Purchaser, but no more than once per calendar year, unless the
Company’s Repurchase Option has been exercised, you shall deliver to Purchaser a certificate or
certificates representing so many shares of stock as are not then subject to the Company’s
Repurchase Option. Within 90 days after Purchaser ceases to be an Employee, you shall deliver to
Purchaser a certificate or certificates representing the aggregate number of shares held or issued
pursuant to the Agreement and not acquired by the Company or its assignees pursuant to exercise of
the Company’s Repurchase Option.



 









 





     5. If at the time of termination of this escrow you should have in your possession any
documents, securities, or other property belonging to Purchaser, you shall deliver all of the same
to Purchaser and shall be discharged of all further obligations hereunder.



     6. Your duties hereunder may be altered, amended, modified or revoked only by a writing signed
by all of the parties hereto.



     7. You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith, and any
act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.



     8. You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or corporation, excepting only orders or process of courts of
law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of
any court. In case you obey or comply with any such order, judgment or decree, you shall not be
liable to any of the parties hereto or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without jurisdiction.



     9. You shall not be liable in any respect on account of the identity, authorities or rights of
the parties executing or delivering or purporting to execute or deliver the Agreement or any
documents or papers deposited or called for hereunder.



     10. You shall not be liable for the outlawing of any rights under the statute of limitations
with respect to these Joint Escrow Instructions or any documents deposited with you.



     11. You shall be entitled to employ such legal counsel and other experts as you may deem
necessary properly to advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation therefor.



     12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be
an officer or agent of the Company or if you shall resign by written notice to each party. In the
event of any such termination, the Company shall appoint a successor Escrow Agent.



     13. If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.



     14. It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities held by you hereunder, you are authorized
and directed to retain in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of competent jurisdiction
after the time for appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.



2









 





     15. Any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery or upon deposit in the United States Post Office, by
registered or certified mail with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses or at such other addresses as a party may designate
by ten days’ advance written notice to each of the other parties hereto.



	 	 	 
	COMPANY:

	 	Hyperion Solutions Corporation
	

	 	5450 Great America Parkway
	

	 	Santa Clara, CA 95054
	 
	 	 
	PURCHASER:

	 	<<Name>>
	

	 	<<Address>>
	 
	 	 
	ESCROW AGENT:

	 	Corporate Secretary
	

	 	Hyperion Solutions Corporation
	

	 	5450 Great America Parkway
	

	 	Santa Clara, CA 95054






     16. By signing these Joint Escrow Instructions, you become a party hereto only for the
purpose of said Joint Escrow Instructions; you do not become a party to the Agreement.



     17. This instrument shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and permitted assigns.



     18. These Joint Escrow Instructions shall be governed by, and construed and enforced in
accordance with, the internal substantive laws, but not the choice of law rules, of California.



	 	 	 	 	 	 	 
	Very truly yours,
	HYPERION SOLUTIONS CORPORATION
	 
	 	 
	By:
	 	 
	

	 
	Name:
	 	 
	

	 
	Title:
	 	 
	

	 
	 
	 	 
	PURCHASER
	 
	 	 
	 
	<<Name>>
	 
	 	 
	ESCROW AGENT
	 
	 	 
	 
	Corporate Secretary







3









 






EXHIBIT 3




CONSENT OF SPOUSE




     I, «SpouseName», spouse of «Name», have read and approve the foregoing Restricted Stock
Purchase Agreement (the “Agreement”). In consideration of the Company’s grant to my spouse of the
right to acquire shares of Hyperion Solutions Corporation, as set forth in the Agreement, I hereby
appoint my spouse as my attorney-in-fact in respect to the exercise of any rights under the
Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights
in said Agreement or any shares issued pursuant thereto under the community property laws or
similar laws relating to marital property in effect in the state of our residence as of the date of
the signing of the foregoing Agreement.



Dated: _______________, 2005




	 	 	 
	


	 	 
	<<SpouseName>>