Exhibit 10.17
**EXECUTIVE EMPLOYMENT AGREEMENT**
**This Executive Employment Agreement**(“Agreement”) is entered into as of theeffective date (“Effective Date”) specified in the exhibit (“Exhibit”) to thisAgreement by and between Hyperion Solutions Corporation, a Delaware corporationwith offices at 1344 Crossman Avenue, Sunnyvale, California 94089 (“Hyperion”)and the executive employee (“Employee”) specified in the Exhibit.
**1.**     **Duties and Scope of Employment**
a.      Subject to the terms of this Agreement, Hyperion agrees to employ Employeein the position (“Position”) specified in the Exhibit, or in such otherposition as Hyperion subsequently may assign to Employee, to perform the dutiesof the Position (“Employment”) specified in the Exhibit, or such duties asHyperion subsequently may assign to Employee. Employee shall report to thesupervisor (“Supervisor”) specified in the Exhibit.
b.      During the term of Employee’s Employment, Employee shall devote Employee’sfull business efforts and time to Hyperion. During the term of Employee’sEmployment, without the prior written approval of Hyperion (which shall not beunreasonably withheld), Employee shall not render services in any capacity toany other person or entity, and shall not act as a sole proprietor, partner ormanaging member of any other entity, or as a shareholder owning more than onepercent (1%) of the stock of any other 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 ineffect from time to time, during the term of Employee’s Employment.
d.      Employee represents to Hyperion, to the best of Employee’s knowledge andbelief, that Employee is under no obligation or commitment, whether contractualor otherwise, that is inconsistent with Employee’s obligations under thisAgreement. Employee represents to Hyperion, to the best of Employee’sknowledge and belief, that Employee’s Employment with Hyperion will not requirethe use, or disclosure, of any trade secrets or other proprietary informationor intellectual property in which Employee, or any other person, has any right,title or interest, and that Employee’s Employment by Hyperion, as contemplatedby this Agreement, will not infringe or violate the rights of any other personor entity. Employee represents to Hyperion, to the best of Employee’sknowledge and belief, that Employee has returned all property and confidentialinformation belonging to any prior employer.
**2.**     **Compensation**
a.      Hyperion shall pay Employee, as compensation for Employee’s services, a basesalary at a gross annual rate of not less than the base salary (“Base Salary”)specified in the Exhibit. Such Base Salary shall be payable in accordance withHyperion’s standard payroll procedures. The Base Salary, together with anyincreases in such compensation that Hyperion may grant from time to time, shallbe referred to as the base compensation (“Base Compensation”).
b.      As more fully and completely described in the attached offer letter with thedate (“Offer Letter Date”) specified in the Exhibit, Employee shall be eligibleto receive an annual incentive bonus (“Incentive Bonus”) with a target amountequal to the bonus percentage (“Bonus Percentage”) specified in the Exhibit, ofEmployee’s Base Compensation. Such bonus (if any) shall be awarded based onobjective or subjective criteria established in advance by Hyperion’s board ofdirectors or its compensation committee. The determinations of the board orsuch committee with respect to such bonus shall be final and binding. Anyconflict between this subsection 2.b and the offer letter shall be resolved infavor of the offer letter.
c.      During the term of Employee’s Employment, Employee shall be eligible toparticipate in any employee benefit plans maintained by Hyperion for similarlysituated employees, subject in each case to the generally applicable terms andconditions of the plan in question, and to the determinations of any person orcommittee administering such plan. In addition to the foregoing benefits,Employee shall be entitled to the additional benefits (“Additional Benefits”)specified in the Exhibit, if any.
d.      During the term of Employee’s Employment, Employee shall be authorized toincur necessary and reasonable travel, entertainment and other businessexpenses in connection with Employee’s duties hereunder. Hyperion shallreimburse Employee for such expenses upon presentation of an itemized accountand appropriate supporting documentation, all in accordance with Hyperion’sgenerally applicable policies. Any single expenditure in excess of tenthousand dollars ($10,000.00) shall require the prior approval of Hyperion’sChief Executive Officer, President or Chief Financial Officer.     Page 1 of 6 Hyperion Confidential  
 

 

**3.**     **Term of Employment**
a.      This Agreement shall be for the initial term (“Initial Term”) specified inthe Exhibit. Thereafter, this Agreement shall automatically be renewed forsuccessive renewal periods (“Renewal Period”) as specified in the Exhibit,unless either party has given the other party written notice of non-renewal notless than ninety (90) days prior to the end of the Initial Term, or RenewalPeriod then in effect.
b.      Hyperion agrees to continue Employee’s Employment, and Employee agrees toremain in Employment with Hyperion, from the Effective Date until the earlierof the Initial Term Date or Renewal Period, or the date when Employee’sEmployment 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 (orno reason), and with or without cause, by giving Employee thirty (30) daysadvance written notice.
b.     Hyperion may also terminate Employee’s Employment due to Employee’spermanent disability, by giving Employee notice in writing. Permanentdisability shall mean that Employee, at the time notice is given, has failed toperform Employee’s duties under this Agreement for sixty (60), or moreconsecutive 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 mentalinjury, disability or illness, and which Hyperion is unable to accommodatereasonably without undue hardship. Employee’s Employment shall terminateautomatically in the event of Employee’s death.
c.      Unless otherwise provided for herein, upon the termination of Employee’sEmployment pursuant to this section, Employee shall only be entitled to thecompensation, benefits and reimbursements described in section 2 for the periodpreceding the effective date of the termination. No unpaid bonus under Section2 shall be payable for the year in which Employee’s Employment terminates,unless the applicable bonus program expressly provides for the payment of aprorated bonus for such year. The payments under this Agreement shall fullydischarge all responsibilities of Hyperion to Employee. The termination ofthis Agreement shall not limit or otherwise affect Employee’s obligations underSection 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 aform prescribed by Hyperion, such as the current Termination Release Agreementavailable from the Hyperion legal department) of all known and unknown claimsthat Employee may then have against Hyperion or persons affiliated withHyperion. Such release shall include, among other things, an agreement not toprosecute any legal action or other proceeding based upon any of such claims.Employee acknowledges that such release may provide that in the event of abreach by Employee of the terms of the release, or of Employee’s obligationsunder section 5 hereof, Hyperion shall be entitled to recover from Employee allamounts paid under subsections e and f of this section.
e.      If:
i.      Hyperion does not renew this Agreement, or terminates Employee’sEmployment for any reason other than permanent disability, or cause, asdefined below;
ii.      Employee resigns for good reason, as defined below; or
iii.      during the term of this Agreement, the chief executive officer as ofthe Effective Date of this Agreement ceases to serve as the seniorexecutive officer of Hyperion, Hyperion’s board of directors appoints anew chief executive officer, and within six (6) months of the first day ofsuch new chief executive officer’s employment with Hyperion, Employeeresigns because Hyperion has significantly diminished the nature or scopeof Employee’s authority, duties or responsibilities the were in effectimmediately prior to the appointment of the new chief executive officer,
then, for the continuation period (“Continuation Period”) specified in theExhibit, following Employee’s termination, Hyperion shall pay EmployeeEmployee’s Base Compensation, at the rate in effect at the time of thetermination of Employment, Employee’s Incentive Bonus, both in accordance withHyperion’s standard payroll procedures, and continue the coverage of Employee,and Employee’s dependents (if applicable), under the health benefit plans ineffect at the time of the termination. To the extent that such plans or theinsurance contracts or provider agreements associated with such plans do notpermit the extension of Employee’s coverage following the termination ofEmployee’s active employment, Hyperion shall pay Employee cash in an amountequal to the cost to Hyperion of the coverage that cannot be provided. IfEmployee elects to continue Employee’s health insurance coverage under theConsolidated Omnibus Budget Reconciliation Act (“COBRA”), following Employee’stermination, then the date of the “qualifying event” for purposes of COBRAshall be Employee’s last day of active employment.
f.      Cause means the commission of any act of fraud, embezzlement or dishonestyby Employee, any unauthorized use or disclosure by Employee of confidentialinformation or trade secrets of Hyperion, or any other     Page 2 of 6 Hyperion Confidential  
 

 

intentional misconduct by Employee adversely affecting the business or affairsof Hyperion in a material manner. The foregoing definition shall not be deemedto be inclusive of all the acts or omissions which Hyperion may consider ascause for the dismissal or discharge of Employee.
g.      Good reason means:
i.      a change in Employee’s position which significantly diminishes thenature or scope of Employee’s authority, duties or responsibilities;
ii.      a reduction in Employee’s level of compensation (including BaseSalary, benefits and participation in corporate-performance based bonus orincentive programs), excluding any insignificant change therein; or
iii.      a relocation of Employee’s place of employment by more than fifty(50) miles;
provided and only if such change, reduction or relocation is effected byHyperion 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 withthe business of Hyperion by, directly or indirectly, personally or throughothers, soliciting or attempting to solicit, on Employee’s own behalf or onbehalf of any other person or entity, the employment of any employee ofHyperion, or any of Hyperion’s affiliates. During this period, Employee shallnot encourage or induce, or take any action that has the effect of encouragingor inducing, any employee of Hyperion, or any of Hyperion’s corporateaffiliates, to terminate that employee’s employment. Notwithstanding theforgoing, or any other term in this Agreement, Employee may solicit and hireEmployee’s executive assistant away from Hyperion.
b.      For a period of one hundred and twenty days (120) days following Employee’stermination, Employee shall not hire, or assist any other person in hiring, anyperson 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 eitherdirectly to Employee, or to any other person who reports directly to Employee.
c.      From the Effective Date of this Agreement and continuing until the second(2nd) anniversary of Employee’s termination, Employee shall not use anyconfidential information Employee obtained during Employee’s Employment withHyperion to, directly or indirectly, personally or through others, solicit, orattempt to solicit (on Employee’s own behalf or on behalf of any other personor entity), the business of any customer, or prospective customer, of Hyperion,or of any of Hyperion’s affiliates, for services or products similar to thosesold by Hyperion. Prospective customer means any person or entity whomEmployee was involved in contacting or soliciting to become a customer duringthe six (6) month period prior to Employee’s termination.
d.      Employee has entered into an Employee Proprietary Information Agreement withHyperion, which is incorporated herein by reference, and survives thetermination or expiration of this Agreement. Given the nature of Employee’sPosition, Employee understands that it may be not be possible for Employee towork in a position similar to Employee’s Position with Hyperion, doing similartasks involved with Employee’s Employment with Hyperion, for the companieslisted in Schedule A (attached hereto), that provide services or products thatare similar to those of Hyperion, without disclosing Hyperion’s trade secretsin violation of the Employee Proprietary Information Agreement.
e.      Commencing on Employee’s termination and continuing thereafter, Employeeshall not directly or indirectly, personally or through others, disparageHyperion, or any of its predecessors, any of their products or services, any ofHyperion’s current or former officers, directors or employees, nor make orsolicit any comments, statements, or the like to the media, on the internet, orto others that may be considered derogatory or detrimental to the good name orbusiness reputation of any of the foregoing parties and entities.
f.      Employee acknowledges and agrees that Employee’s failure to perform any ofEmployee’s covenants in this section would cause irreparable injury toHyperion, and cause damages to Hyperion that would be difficult or impossibleto ascertain or quantify. Accordingly, without limiting any other remediesthat may be available with respect to any breach of this Agreement, Employeeconsents to the entry of an injunction to restrain any breach of this section.
g.      The covenants in this section shall survive any termination or expiration ofthis Agreement, and the termination of Employee’s Employment with Hyperion, forany reason.
**6.**     **General**
a.      Hyperion shall require any entity that assumes all, or substantially all, ofHyperion’s assets to assume the obligations of this Agreement. Such anassignment shall be binding upon any successor (whether direct or indirect andwhether by purchase, lease, merger, consolidation, liquidation or otherwise) toall or substantially all of Hyperion’s business and/or assets. This Agreementand all rights and obligations of Employee hereunder are personal to Employeeand may not be transferred or assigned by Employee at any time. However,subject to the     Page 3 of 6 Hyperion Confidential  
 

 

foregoing and where expressly permitted under this Agreement, all rights ofEmployee 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 begoverned by the laws of the State of California, USA (excluding its conflict oflaws provisions). Santa Clara County, California shall be the appropriatevenue and jurisdiction for the resolution of disputes hereunder.
c.      All notices or communications to be given under this Agreement shall be inwriting and shall be deemed delivered upon hand delivery, upon delivery by acourier service, upon acknowledged facsimile communication, or three (3) daysafter deposit in the United States mail, postage prepaid, by certified,registered or first class mail. In the case of Employee, notices shall beaddressed to Employee at the home address provided by Employee, or whichEmployee most recently communicated to Hyperion in writing, and in the case ofHyperion, notices shall be addressed to its corporate headquarters and directedto the attention of the general counsel.
d.      All payments made under this Agreement shall be subject to reduction toreflect taxes or other charges required to be withheld by law.
e.      In the event that any provision of this Agreement is prohibited by any lawgoverning its construction, performance or enforcement, such provision shall beineffective to the extent of such prohibition without invalidating thereby anyof the remaining provisions of the Agreement. The captions of sections hereinare intended for convenience only, and the same shall not be interpretive ofthe content of such section.
f.      Subject to provisions of this agreement providing for injunctive relief, anycontroversy or claim arising out of or relating to this Agreement or the breachthereof, or Employee’s Employment or the termination thereof, shall be settledin Santa Clara County, California, by arbitration in accordance with theNational Rules for the Resolution of Employment Disputes of the AmericanArbitration Association. The decision of the arbitrator shall be final andbinding on the parties, and judgment on the award rendered by the arbitratormay be entered in any court having jurisdiction thereof. The parties herebyagree that the arbitrator shall be empowered to enter an equitable decreemandating specific enforcement of the terms of this Agreement. Employee herebyconsents to personal jurisdiction of the state and federal courts located inthe County of Santa Clara in the State of California for any action orproceeding arising from or relating to this Agreement or relating to anyarbitration in which the parties are participants.
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 waiver by either party of any breach of, or of compliance with, anycondition or provision of this Agreement by the other party shall be considereda waiver of any other condition or provision or of the same condition orprovision at another time.
h.      This Agreement may be executed in two or more counterparts, each of whichshall be deemed an original, but all of which together shall constitute one andthe same instrument.
i.      This Agreement, the Exhibit, any additional terms (“Additional Terms”)specified in the Exhibit, Schedule A, the Employee Proprietary InformationAgreement, and the attached offer letter with the Offer Letter Date, constitutethe entire agreement between the parties as to the subject matter hereof, andsupersede and replace all prior or contemporaneous agreements, written or oral,regarding such subject matter. In the event of any conflict between the termsof these documents, the terms of this Agreement, unless expressly providedherein, shall have precedence.
**Accepted and Agreed:**     **Hyperion Solutions Corporation** **Employee**     By: /s/ Godfrey Sullivan /s/ Burton M. Goldfield    signature of authorized representative signature     Godfrey Sullivan Burton M. Goldfield   printed name printed name     President and Chief Operating Officer     title       Page 4 of 6 Hyperion Confidential  
 

 
      **EXECUTIVE EMPLOYMENT AGREEMENT**