EXHIBIT 10.13
MARIMBA(R)
Marimba, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX
00000-0000
xxx.xxxxxxx.xxx
P 000 000-0000
F 650 930-5600
August 9, 2002
Xxx Bieber
0000 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Dear Xxx:
This letter (the "Agreement") 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 August 9,
2002 ("Termination Date"). Through the Termination Date, you
agree to continue to perform the job duties assigned to you by
the Company and the Company agrees that it will continue to pay
you your current base salary and provide you any employee
benefits that you are otherwise entitled to receive through the
Termination Date. On the Termination Date, you will be paid for
any accrued but unused PTO and all of your salary earned but
unpaid through the Termination Date, less all applicable
withholdings.
2. Although you are not otherwise entitled to receive any severance
pay from the Company, on the later of: (a) eight days after you
sign this Agreement or; (b) the Termination Date, the Company
will pay you a lump sum severance payment of $144,687.50, less
all applicable withholdings.
3. You agree that the only payments and benefits that you are
entitled to receive from the Company on or following the
Termination Date are those expressly set forth in this
Agreement. You acknowledge and agree that this Agreement
supercedes any other agreement between you and the Company,
including (but not limited to) your Offer Letter dated September
30, 1997, the Restricted Stock Agreement and Notice of
Restricted Stock Award entered into by and between
1
you and the Company dated July 24, 2001, the Amendment to the
Agreements Governing the Restricted Stock Award into by and
between you and the Company dated June 18, 2002, the Employee
Incentive Agreement entered into by and between you and the
Company dated July 24, 2001, and the Stock Option Agreement
entered into by and between you and the Company dated July 24,
2002 (collectively, the "Prior Agreements") to the extent that
such Prior Agreements provide for payments or benefits upon a
termination of your employment. Any obligation of the Company to
provide you such payments or benefits under any of the Prior
Agreements is hereby terminated in its entirety, including, but
not limited to, any provisions of the Prior Agreements providing
for accelerated vesting of any Company restricted stock or stock
options. You expressly waive any right you may have under any of
the Prior Agreements to accelerated vesting of any Company
restricted stock you hold on the Termination Date and to
accelerated vesting or exercisability of any Company stock
options you hold on the Termination Date.
4. The Company will exercise its Right of Repurchase as set forth
in the Restricted Stock Agreement entered into by and between
you and the Company dated July 24, 2001, pursuant to which the
Company will repurchase the shares you purchased pursuant to
that agreement at the price of $0.0001 per share (the price at
which you purchased such shares). You agree that the entire
50,000 shares subject to such Restricted Stock Agreement, and
any amendment thereto, are unvested and will be repurchased by
the Company at the total price of five dollars ($5.00). You
further agree that this Agreement constitutes the written notice
required for the Company to exercise its Right of Repurchase
with respect to such shares.
5. In consideration for receiving the severance payment described
in paragraph 2 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, without
limitation, 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, constructive discharge, emotional distress,
defamation, invasion of privacy, 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, the Older Workers Benefit Protection
Act, the Americans with Disabilities Act, the California Labor
Code (including Section 201), 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." You understand that this Agreement constitutes
a waiver and release of all claims as set forth herein,
including any such claims that you may discover in the future
and any such based on facts you may discover in the future.
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
("PIIA") signed by you on October 20, 1997 a copy of which is
attached, including but not limited to, your non-solicitation
obligation as set forth in paragraph 4 of the PIIA.
9. You understand and agree that you shall have no further rights
to vesting of any stock options granted to you by the Company,
or restricted stock purchased by you from the Company, following
the Termination Date. You further understand that, except as set
forth in paragraph 3 of this Agreement, all the terms,
conditions and limitations applicable to your stock option
grants shall remain in full force and effect.
10. You agree that you will not disclose to others the fact or terms
of this Agreement, 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 you shall not make any negative or disparaging
remarks about the Company, its officers, employees, directors,
products, services or business practices.
12. You agree that except as expressly provided in this Agreement,
this Agreement renders null and void any and all prior
agreements between you and the Company. You and the Company
agree that this 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.
13. This Agreement shall be construed and interpreted in accordance
with the laws of the State of California.
14. You agree that this Agreement may be executed in counterparts,
each of which shall be an original, but all of which together
shall constitute one agreement. Execution of a facsimile copy
shall have the same force and effect as execution of an
original, and a facsimile signature shall be deemed an original
and valid signature.
15. You have up to twenty-one (21) days after receipt of this
Agreement within which to review it, and to discuss it with
an attorney of your own choosing, at your expense, regarding
whether or not you wish to sign it. Furthermore, you have
seven (7) days after you have signed this Agreement during
which time you may revoke this Agreement.
16. 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 this Agreement shall
not become effective or enforceable until the eighth day
after the date you sign this Agreement.
Please indicate your agreement with the above terms by signing below.
Sincerely yours,
/s/ Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
My agreement with the above terms is signified by my signature below.
Furthermore, I acknowledge that I have read and understand this Agreement, that
I have been represented by counsel in the review and negotiation of this
Agreement or that I voluntarily declined to seek such counsel, 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 Agreement.
Signed: /s/ Xxx Bieber Dated: 8/9/02
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Xxx Bieber
