exv10w80w1



 





Exhibit
10.80.1




BUSINESS OBJECTS S.A.




AMENDMENT TO CHANGE OF CONTROL SEVERANCE AGREEMENT




     The Change of Control Severance Agreement effective as of November 9, 2006 (the “Agreement”)
entered into between Business Objects S.A. (the “Company”) and James R. Tolonen (the “Executive”)
is hereby amended by this Amendment to Change of Control Severance Agreement (the “Amendment”) as
follows:



     1. Cash Payment. Subject to any delay in payment due to Internal Revenue Code Section
409A pursuant to Section 5 hereof, upon the earlier to occur of (i) July 1, 2008, or (ii) the date
of termination of Executive’s employment by the Company or Executive for any or no reason at any
time following a following a Change of Control in connection with the proposed transaction by and
among the Company and SAP AG (the “Change of Control”), and subject to Executive entering into a
Release of Claims in the form attached hereto as Exhibit A (a “Release”) within thirty (30)
days thereafter, the Company shall pay to Executive the cash payments set forth in section 3(a)(i)
of the Agreement entitled “Severance Payment.” The payment amount with respect to Executive’s
annual base salary shall be measured by Executive’s annual base salary as in effect on the date on
which the Change of Control occurs and the payment amount with respect to Executive’s target bonus
shall be measured by Executive’s target bonus for the Company’s fiscal year 2008. For the sake of
clarity, on and following the Change of Control, Executive shall be fully vested in the right to
receive this cash payment.



     2. Equity Compensation Acceleration. Upon the Change of Control, subject to Executive
entering into a Release of Claims in the form attached hereto as Exhibit A (a “Release”)
within thirty (30) days thereafter, Executive shall be entitled to immediate 100% vesting of, and
lapsing of 100% of the Company’s repurchase rights and forfeiture rights of, his outstanding stock
options, restricted stock units and any other equity compensation as described in section 3(a)(ii)
of the Agreement entitled “Options; Restricted Shares, Other Equity Compensation” (the “RSUs”).
For the sake of clarity, Executive shall not be required to terminate employment with the Company
pursuant to the terms and conditions provided under the Agreement as a condition to receiving the
accelerated vesting under Section 2 hereof.



     3. Continued Employee Benefits. At any time on or after the Benefits Trigger Date, if
Executive’s employment with the Company, its parent, or an affiliated company terminates for any or
no reason, then subject to Executive entering into and not revoking a Release, modified to include
a waiver of claims under the Age Discrimination in Employment Act of 1967, within forty-five (45)
days thereafter, Executive shall receive the following benefits:



          (a) Group Health, Dental and Vision Premium Reimbursement. Executive shall be
reimbursed for group health, dental and vision insurance coverage premiums at the same level of
coverage as was provided to Executive immediately prior to his employment termination and at the
same ratio of Company premium payment to Executive premium payment as was in effect immediately
prior to such employment termination (the “Company-Paid Coverage”). If such



 









 






Company-Paid Coverage included Executive’s dependents immediately prior to the employment
termination, such dependents shall also be covered at Company’s expense. Such Company-Paid
Coverage shall continue until the earlier of: (i) eighteen (18) months from the date of
termination, or (ii) the date upon which Executive and his dependents become covered under another
employer’s group health, dental and vision plans that provide Executive and his dependents with
comparable benefits and levels of coverage (the “Benefits Continuation Period”). For purposes of
Title X of the Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the date of the
“qualifying event” for Executive and his dependents shall be the end of the Benefits Continuation
Period.




          (b) Life Insurance Continuation. For the duration of the Benefits Continuation
Period, Executive shall be reimbursed for life insurance coverage premiums (or provided life
insurance coverage) at the same level of coverage as was provided to Executive immediately prior to
his employment termination and at the same ratio of Company premium payment to Executive premium
payment as was in effect immediately prior to such employment termination; provided, however that
such coverage, premium payments, or reimbursements (to the extent Employee pays the premiums in the
interim) shall be delayed six months and one day from Employee’s termination date (and then paid in
full in arrears) to the extent required to avoid the imposition of additional tax under U.S.
Internal Revenue Code Section 409A.




     4. Satisfaction of Tax Obligations in Connection with Cash Payment. To the extent
that Executive is required to satisfy tax withholding obligations with respect to the cash payment
set forth in Section 1 hereof (“Tax Obligations”), the Company shall make a cash payment to
Executive in an amount equal to the Tax Obligation. Such cash payment made by the Company to
Executive shall reduce, in an aggregate amount equal to such cash payments made, the cash payment
otherwise due Executive under Section 1 hereof.



     5. Code Section 409A. Notwithstanding any other provision of this Agreement, if the
Executive is a “specified employee” under Internal Revenue Code Section 409A and a delay in making
any the severance payments under Section 1 hereof is required by Code Section 409A and any Treasury
Regulations and IRS guidance thereunder, and is necessary in the good faith judgment of the
Executive, in order to avoid the Executive incurring additional tax under Section 409A, such
payments shall not be made until the end of six (6) months following the date of the Executive’s
separation from service in accordance with Code Section 409A.



     6. Effective Date; Automatic Termination. This Amendment is effective on the last
date signed by both parties hereto below. This Amendment shall terminate automatically and be
without further force and effect if the Change of Control is not consummated by December 31, 2008.



     7. Change of Control Severance Agreement. If the Executive receives benefits under
Sections 1 and 2 and 3 of this Amendment, Executive shall not be entitled to receive benefits under
Section 3(a) of the Agreement; provided, however, that in such event Executive shall still receive
benefits under Sections 1, 2 and 3 of this Amendment. To the extent not expressly amended by this
Amendment, the Agreement remains in full force and effect.



     8. Entire Agreement. This Amendment, taken together with the Agreement and the
respective award agreements and equity compensation plan(s) under which Executive’s equity



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awards were granted (to the extent each such document is not expressly amended hereby)
represents the entire agreement of the parties, supersedes any and all previous contracts,
arrangements or understandings between the parties with respect to the Agreement, and may be
amended at any time only by mutual written agreement of the parties hereto.




     IN WITNESS WHEREOF, this instrument is executed as of the date set forth below.



	 	 	 	 	 	 	 
	COMPANY:	 	Business Objects S.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Schwarz 	 	 
	 

	 	 	 	 

John Schwarz
	 	 
	 

	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	December 31, 2007 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTIVE:
	 	/s/ James R. Tolonen 	 	 
	 	 	 	 	 
	 	 	James R. Tolonen	 	 
	 	 	Chief Financial Officer and Senior Vice President,	 	 
	 	 	Finance and Administration	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	December 31, 2007 	 	 
	 

	 	 	 	 	 	 





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EXHIBIT A




BUSINESS OBJECTS S.A.




RELEASE OF CLAIMS




     This Release of Claims (“Release”) is made by and between James R. Tolonen (“Executive”) and
Business Objects S.A. (the “Company”) (jointly referred to as the “Parties” or individually
referred to as a “Party”).



     WHEREAS, Executive and the Company have entered into a Change of Control Severance Agreement,
that was amended on December 31, 2007 (as amended, the “Agreement”).



     WHEREAS, Executive has agreed to enter into a release of claims in favor of the Company upon
certain events specified in the Agreement.



     WHEREAS, subject to the terms of the Agreement, Executive is entitled to receive good and
valuable consideration as set forth in the Agreement.



     NOW THEREFORE, in consideration of the mutual promises made herein, the Parties hereby agree
as follows:



     1. Agreement. The Company and Executive agree that the terms of the Agreement shall
remain in full force and effect and are fully incorporated herein except to the extent that they
are inconsistent with this Release.



     2. Consideration. Pursuant to the terms and conditions of the Agreement, Executive is
entitled to such good and valuable consideration as is set forth in the Agreement.



     3. Release of Claims. Executive agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Executive by the Company and its current
and former officers, directors, Executives, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, and subsidiaries, and predecessor and successor corporations
and assigns (collectively, the “Releasees”). Executive, on Executive’s own behalf and on behalf of
Executive’s respective heirs, family members, executors, agents, and assigns, hereby and forever
releases the Releasees from, and agrees not to sue concerning, or in any manner to institute,
prosecute or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to
any matters of any kind, whether presently known or unknown, suspected or unsuspected, that
Executive may possess against any of the Releasees arising from any omissions, acts, facts, or
damages that have occurred up until and including the Effective Date of this Release, including,
without limitation:



          a. any and all claims relating to or arising from Executive’s employment relationship with the
Company as of the Effective Date of this Release;




          b. any and all claims relating to, or arising from, Executive’s right to purchase, or actual
purchase of shares of stock of the Company, including, without limitation, any claims for



 









 






fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state
corporate law, and securities fraud under any state or federal law;




          c. any and all claims for wrongful discharge of employment; termination in violation of public
policy; discrimination; harassment; retaliation; breach of contract, both express and implied;
breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress; fraud; negligent or intentional
misrepresentation; negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;




          d. any and all claims for violation of any federal, state, or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the
Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the
Fair Labor Standards Act, except as prohibited by law; the Fair Credit Reporting Act; the Age
Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Executive
Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the
Family and Medical Leave Act, except as prohibited by law; the Sarbanes-Oxley Act of 2002; the
California Family Rights Act; the California Labor Code, except as prohibited by law; the
California Workers’ Compensation Act, except as prohibited by law; and the California Fair
Employment and Housing Act;




          e. any and all claims for violation of the federal or any state constitution;




          f. any and all claims arising out of any other laws and regulations relating to employment or
employment discrimination;




          g. any claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by Executive as a result of
the Agreement or any other agreement or arrangement entered into between the Executive and Company
relating to Executive’s services provided to the Company; and




          h. any and all claims for attorneys’ fees and costs.




          i. Executive agrees that the release set forth in this section shall be and remain in effect
in all respects as a complete general release as to the matters released. This release does not
extend to any obligations incurred under this Release. This release does not release claims that
cannot be released as a matter of law, including, but not limited to: (1) Executive’s right to
benefits under the Agreement; (2) Executive’s right to file a charge with, or participate in a
charge by, the Equal Employment Opportunity Commission or comparable state agency against the
Company (with the understanding that any such filing or participation does not give Executive the
right to recover any monetary damages against the Company; Executive’s release of claims herein
bars Executive from recovering such monetary relief from the Company); (3) claims under Division 3,
Article 2 of the California Labor Code (which includes California Labor Code section 2802 regarding
indemnity for necessary expenditures or losses by Executive); (4) claims prohibited from release as
set forth in California Labor Code section 206.5 (specifically “any claim or right on account of
wages due, or to



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become due, or made as an advance on wages to be earned, unless payment of such wages has been
made”); (5) Executive’s rights to bonus or incentive compensation for fiscal 2007; (6) Executive’s
rights to coverage under any fiduciary insurance policy purchased or obtained by or on behalf of
the Company in which Executive is insured or in connection with the Company’s Change in Control (as
defined in the Agreement) or to indemnification under any contract, by-law or other arrangement
that would cover Executive but for this Release; and (7) Executive’s rights under any retention
restricted stock unit granted to Executive at the request of SAP AG.




     4. No Waiver of Claims Under ADEA. The Parties agree that Executive is not waiving
and releasing any rights Executive may have under the Age Discrimination in Employment Act of 1967
(“ADEA”).



     5. California Civil Code Section 1542. Executive acknowledges that Executive has been
advised to consult with legal counsel and is familiar with the provisions of California Civil Code
Section 1542, a statute that otherwise prohibits the release of unknown claims, which provides as
follows:



A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.



     Executive, being aware of said code section, agrees to expressly waive any rights Executive
may have thereunder, as well as under any other statute or common law principles of similar effect.



     6. No Pending or Future Lawsuits. Executive represents that Executive has no
lawsuits, claims, or actions pending in Executive’s name, or on behalf of any other person or
entity, against the Company or any of the other Releasees. Executive also represents that
Executive does not intend to bring any claims on Executive’s own behalf or on behalf of any other
person or entity against the Company or any of the other Releasees.



     7. Breach. Executive acknowledges and agrees that any material breach of this
Release, unless such breach constitutes a legal action by Executive brought in good faith pursuant
to the ADEA, shall entitle the Company immediately to recover and/or cease providing the
consideration provided to Executive under this Release, except as provided by law. Except as
provided by law, Executive shall also be responsible to the Company for all costs, attorneys’ fees,
and any and all damages incurred by the Company in: (a) enforcing Executive’s obligations under
this Release, including in any action to recover the consideration, and (b) defending against a
claim or suit brought or pursued by Executive in violation of the terms of this Release.



     8. No Admission of Liability. Executive understands and acknowledges that this
Release constitutes a compromise and settlement of any and all actual or potential disputed claims
by Executive. No action taken by the Company hereto, either previously or in connection with this
Release, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual
or



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potential claims or (b) an acknowledgment or admission by the Company of any fault or
liability whatsoever to Executive or to any third party.



     9. No Cooperation. Executive agrees that Executive will not counsel or assist any
attorneys or their client in the presentation or prosecution of any disputes, differences,
grievances, claims, charges or complaints by any third party against the Company and/or any
officer, director, employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.



     10. ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS
OF THIS RELEASE, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO
ARBITRATION IN SANTA CLARA COUNTY, CALIFORNIA, BEFORE JAMS, PURSUANT TO ITS EMPLOYMENT ARBITRATION
RULES & PROCEDURES (“JAMS RULES”). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH
DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH
CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY
SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY
CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH
CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE
FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES AGREE THAT THE
PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF
COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH
PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY
PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL
AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES
HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A
JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM
SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING JURISDICTION OVER
THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS RELEASE AND THE AGREEMENTS
INCORPORATED HEREIN BY REFERENCE.



     11. Tax Consequences. The Company makes no representations or warranties with respect
to the tax consequences of the payments and any other consideration provided to Executive or made
on Executive’s behalf under the terms of this Release. Executive agrees and understands that
Executive is responsible for payment, if any, of local, state, and/or federal taxes on the payments
and any other consideration provided hereunder by the Company and any penalties or assessments
thereon. Executive further agrees to indemnify and hold the Company harmless from any claims,
demands, deficiencies, penalties, interest, assessments, executions, judgments, or recoveries by
any



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government agency against the Company for any amounts claimed due on account of (a)
Executive’s failure to pay or the Company’s failure to withhold, or Executive’s delayed payment of,
federal or state taxes, or (b) damages sustained by the Company by reason of any such claims,
including attorneys’ fees and costs.



     12. Authority. Executive represents and warrants that Executive has the capacity to
act on Executive’s own behalf and on behalf of all who might claim through Executive to bind them
to the terms and conditions of this Release.



     13. No Representations. Executive represents that Executive has had an opportunity to
consult with an attorney, and has carefully read and understands the scope and effect of the
provisions of this Release. Executive has not relied upon any representations or statements made
by the Company that are not specifically set forth in this Release.



     14. Severability. In the event that any provision or any portion of any provision
hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal,
unenforceable, or void, this Release shall continue in full force and effect without said provision
or portion of provision.



     15. Attorneys’ Fees. Except with regard to a legal action brought under the ADEA, in
the event that either Party brings an action to enforce or effect its rights under this Release,
the prevailing Party shall be entitled to recover its costs and expenses, including the costs of
mediation, arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in
connection with such an action.



     16. Entire Agreement. This Release represents the entire agreement and understanding
between the Company and Executive concerning the subject matter of this Release, and supersedes and
replaces any and all prior agreements and understandings concerning the subject matter of this
Release, with the exception of the Agreement.



     17. No Oral Modification. This Release may only be amended in a writing signed by
Executive and a duly authorized representative of the Company.



     18. Governing Law. This Release shall be governed by the laws of the State of
California, without regard for choice-of-law provisions.



     19. Effective Date. This Release is effective on the last date signed by the Parties
hereto below (the “Effective Date”).



     20. Counterparts. This Release may be executed in counterparts, and each counterpart
shall have the same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.



     21. Voluntary Execution of Agreement. Executive understands and agrees that Executive
executed this Release voluntarily, without any duress or undue influence on the part or behalf of
the Company or any third party, with the full intent of releasing all of Executive’s claims against
the Company and any of the other Releasees. The Parties acknowledge that:



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          a. They have read this Release;




          b. They have been represented in the preparation, negotiation, and execution of this Release
by legal counsel of their own choice or they have voluntarily declined to seek such legal counsel;




          c. They understand the terms and consequences of this Release and of the releases it contains;
and




          d. They are fully aware of the legal and binding effect of this Release.




[Signature page to follow.]




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     IN WITNESS WHEREOF, the Parties have executed this Release on the respective dates set forth
below.



	 	 	 	 	 	 	 
	 	 	James R. Tolonen, an individual	 	 
	 
	 	 	 	 	 	 
	Dated:                                         
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUSINESS OBJECTS S.A.	 	 
	 
	 	 	 	 	 	 
	Dated:                                         

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	[NAME]	 	 
	 

	 	 	 	[TITLE]