EXHIBIT 10.12
MARIMBA(R)
Marimba, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX
00000-0000
xxx.xxxxxxx.xxx
P 000 000-0000
F 000 000-0000
January 29, 2003
Mr. Xxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xx
Xxxxxxxx, XX 00000
Dear Matt:
This letter is to confirm the agreement between you and Marimba, Inc.
(the "Company") regarding the termination of your employment with the Company.
1. Your employment with the Company will terminate on February 3,
2003. Although you are not otherwise entitled to receive any
severance pay from the Company, following the Effective Date of
this agreement (as defined below) the Company will pay you
severance totaling up to a maximum of $62,500, less all
applicable withholdings, which equals up to three (3) months of
your base salary as of your termination date. The severance will
be paid out twice per month in equal semi-monthly payments of
$10,416.67, less applicable withholdings ("Semi-Monthly
Severance Payment"), and each Semi-Monthly Severance Payment
shall be paid to you at the same time as the Company's normal
employee payroll is paid, and shall continue through and until
the earlier of: (a) the date that you have been paid six (6)
Semi-Monthly Severance Payments; or (b) the date that you
commence any employment or independent contractor relationship
with any other party. You agree that within two (2) business
days from commencing any employment or independent consulting
relationship with any other party, you must provide the head of
Human Resources Department of the Company (or his successor) a
written statement confirming such employment or independent
consulting relationship. The Company agrees that if you abide by
your notice obligations in this paragraph, you will be entitled
to receive a pro-rata share of the
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unpaid Semi-Monthly Severance Payment in any applicable
bi-monthly period that you have commenced any employment or
consulting relationship with any other party.
2. In addition, you will be paid earned commissions in the amount
of $43,105.
3. You agree that prior to the execution of this letter you were
not entitled to receive any further monetary payments from the
Company, and that the only payments and benefits that you are
entitled to receive from the Company in the future are those
specified in this letter. You further acknowledge that no
bonuses, commissions or similar compensation is or will be owing
or payable to you by the Company as of the date of termination
of your employment or thereafter.
4. Subject to your completion and timely submission of the
appropriate paperwork to commence coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), the Company will pay your COBRA premium to
continue your current medical, dental, vision and employee
assistance program benefits under COBRA (including dependent
coverage, if applicable) until the earlier of: (a) April 30,
2003; or (b) the date that you commence any employment or
independent contractor relationship with any other party.
Following such date, you will have the option of continuing
COBRA coverage at your own expense for as long as permitted by
law.
5. In consideration for receiving the severance payments and
benefits described above, you waive and release and promise
never to assert any claims or causes of action, whether or not
now known, against the Company or its predecessors, successors,
or past or present subsidiaries, officers, directors, agents,
employees and assigns, with respect to any matter, including but
not limited to, any matter arising out of or connected with your
employment with the Company or the termination of that
employment, including without limitation, claims of wrongful
discharge, emotional distress, defamation, fraud, breach of
contract, breach of the covenant of good faith and fair dealing,
any claims of discrimination or harassment based on sex, age,
race, national origin, disability or on any other basis, under
Title VII of the Civil Rights Act of 1964, as amended, the
California Fair Employment and Housing Act, the Age
Discrimination in Employment Act of 1967, as amended, and all
other laws and regulations relating to employment.
6. You expressly waive and release any and all rights and benefits
under Section 1542 of the Civil Code of the State of California
(or any analogous law of any other state), which reads as
follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which, if
known by him, must have materially affected his
settlement with the debtor."
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7. Nothing contained in this letter shall constitute or be treated
as an admission by you or the Company of liability, of any
wrongdoing, or of any violation of law.
8. At all times in the future, you will remain bound by the
Company's Proprietary Information and Invention Agreement signed
by you on December 20, 2000, a copy of which is attached hereto.
Neither the Proprietary Information and Inventions Agreement or
the Indemnification Agreement dated as of February 5, 2001
between you and the Company shall be affected by this agreement,
and each such agreement shall continue to be legally effective
in accordance with its respective terms.
9. Any stock options or restricted stock awards held by you shall
be governed and legally effective in accordance with their
applicable terms and conditions, and shall not be affected by
this agreement.
10. You agree that you will not disclose to others the fact or terms
of this letter, except that you may disclose such information to
your attorney or accountant in order for such individuals to
render services to you.
11. You agree that except as expressly provided in this letter, this
letter renders null and void any and all prior agreements
between you and the Company. You and the Company agree that this
letter agreement constitutes the entire agreement between you
and the Company regarding the subject matter of this agreement,
and that this letter agreement may be modified only in a written
document signed by you and a duly authorized officer of the
Company.
12. This agreement shall be construed and interpreted in accordance
with the laws of the State of California.
13. This agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute
one agreement.
14. Any controversy involving the construction or application of any
terms, covenants or conditions of this letter, or any claims
arising out of any alleged breach of this letter, will be
governed by the rules of the American Arbitration Association
and submitted to and settled by final and binding arbitration in
Santa Xxxxx County, California, except that any alleged breach
of the Company's Proprietary Information and Inventions
Agreement shall not be submitted to arbitration and instead the
Company may seek all legal and equitable remedies, including
without limitation, injunctive relief.
15. You have up to forty-five (45) days after receipt of this letter
within which to review it, and to discuss it with an attorney of
your own choosing regarding whether or not you wish to execute
it. Furthermore, you have seven (7) days after you have signed
this letter during which time you may revoke this agreement. If
you wish to revoke this agreement, you may do so by delivering a
letter of revocation to me. Because of this revocation period,
you understand that the
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agreement set forth in this letter shall not become effective or
enforceable until the eighth day after the date you sign this
letter (the "Effective Date").
16. You acknowledge that you have been provided with a notice, as
required by the Older Workers Benefit Protection Act of 1990,
that contains information about the individuals who are being
terminated in the restructuring of the Company, the eligibility
factors for receiving severance benefits, the time limits
applicable to receive severance pay, the job titles and ages of
the employees terminated in restructuring of the Company, and
the ages of the employees with the same job titles who have not
been terminated in this restructuring of the Company. (See
Attachment 1 hereto).
17. You acknowledge that before signing this agreement, you:
. Have read and understand it;
. Know that you are giving up important rights;
. Are aware of your right to consult an attorney before
signing the agreement; and
. Have signed the agreement knowingly and voluntarily.
Please indicate your agreement with the above terms by signing the
signature block provided below.
Sincerely yours,
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
VP, Corporate Services
My agreement with the above terms is signified by my signature below.
Furthermore, I acknowledge that I have read and understand this letter and that
I sign this release of all claims voluntarily, with full appreciation that at no
time in the future may I pursue any of the rights I have waived in this release.
Signed: /s/ Xxxx Xxxxxxxx Dated: 2/4 , 2002
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Xxxx Xxxxxxxx
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Attachment 1
Notice
As required by the Older Workers Benefit Protection Act of 1990, this
notice contains information about the individuals terminated in the Marimba,
Inc. (the "Company") restructuring, the eligibility factors for receiving
severance pay, the time limits applicable to receiving severance pay, the job
titles and ages of the employees terminated in the restructuring of the Company,
and the ages of the employees in the same job classification who have not been
terminated in the reduction in force.
1. Severance benefits are being provided to regular employees of
the Company whose employment is terminated as a result of
restructuring of the Company on February 3, 2003.
2. Employees are not eligible to receive any severance benefit
unless they sign a General Release of All Claims (the
"Release"). Employees who have attained age 40 must return the
Release to the Company within 45 days after receiving the
Release, and once the signed Release is returned to the Company,
the employees have 7 days to revoke the Release.
3. The following is a listing of the ages and job titles of Company
employees terminated in the reduction in force, and the ages of
Company employees in the same job classification who have not
been terminated in the reduction in force:
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Job Title Age Number Selected Number Not Selected
--------- --- --------------- -------------------
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VP, Worldwide Sales 44 1 0
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VP, Channel Sales 38 1 0
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