BUSINESS OBJECTS S.A. AMENDMENT TO OFFER LETTER
Exhibit
10.65.1
AMENDMENT TO OFFER LETTER
The Offer Letter dated September 9, 2005 (the “Agreement”) entered into between Business
Objects S.A. (the “Company”) and Xxxx Xxxxxxx (the “Executive”) is hereby amended by this Amendment
to Offer Letter (the “Amendment”) as follows:
5. Offer Letter. If the Executive receives benefits under Section 3 of this
Amendment, Executive shall not be entitled to receive benefits under subsection (2) of the section
entitled “Change of Control” of the Agreement; provided, however, that in such event Executive
shall still receive benefits under Sections 1 and 2 of this Amendment. To the extent not expressly
amended by this Amendment, the Agreement remains in full force and effect.
COMPANY: | Business Objects S.A. |
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By: | /s/ Xxxxx Xxxxxxx | |||
Xxxxx Xxxxxxx | ||||
Senior Vice President General Counsel and Corporate Secretary |
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Date: | 12/31/07 | |||
EXECUTIVE: | /s/ Xxxx Xxxxxxx | |||
Xxxx Xxxxxxx | ||||
Chief Executive Officer Date: 12/31/07 |
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EXHIBIT A
This Release of Claims (“Release”) is made by and between Xxxx Xxxxxxx (“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 an Offer Letter, that was amended on
December 31, 2007 (as amended, the “Agreement”).
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
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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 Xxxxxxxx-Xxxxx 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
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section 206.5 (specifically “any claim or right on account of wages due, or to 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.
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.
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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 XXXXX 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.
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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.
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;
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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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Xxxx Xxxxxxx, an individual |
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Dated: | ||||
BUSINESS OBJECTS S.A. |
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Dated: | By | |||
[NAME] | ||||
[TITLE] | ||||
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