EXHIBIT 10.8
AMENDMENT TO THE AGREEMENTS GOVERNING RESTRICTED STOCK AWARD
This Amendment (the "Amendment") is made effective as of _________,
2002 (the "Effective Date") between Marimba, Inc., a Delaware corporation (the
"Company"), and __________ ("Executive").
W I T N E S S E T H
WHEREAS, pursuant to the Company's 1999 Omnibus Equity Incentive Plan
(the "Plan"), the Company and the Executive entered into that certain Restricted
Stock Agreement (the "Stock Agreement") and Notice of Restricted Stock Award
(the "Notice"), both dated as of _________, 200__ (collectively, the "Restricted
Stock Agreements"), under which the Company awarded Executive a total of
_________ shares of restricted Common Stock of the Company. Unless otherwise
indicated, the capitalized terms contained herein shall have the same meanings
set forth in the Plan or the Restricted Stock Agreements.
WHEREAS, the Company and Executive wish to change the vesting schedule
of the shares awarded under the Restricted Stock Agreements and therefore agree
to the amendments set forth below.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Amendment of the Notice. The section of the Notice entitled "Vesting
Schedule" shall be deleted and replaced in its entirety by the following:
The shares granted vest in two installments, with the vesting on each
installment vesting date subject to your continuous provision of
service to the Company from the Vesting Commencement Date until the
respective installment vesting date, as follows: the first installment
of 79% of the total number of shares granted vests on February 10,
2003, and the second installment of the remainder of the total number
of shares granted vests on July 10, 2003.
2. Amendment of the Stock Agreement. The current section entitled
"Vesting" of the Stock Agreement shall be deleted and replaced in its entirety
by the following:
The shares vest in two installments, as set forth in the Notice of
Restricted Stock Award, as amended by Section 1 of this Amendment.
Notwithstanding the foregoing:
(a) If you are subject to an Employment Termination that occurs (i)
prior to a Change in Control (as defined in the Plan) and (ii)
following July 1, 2002 and before February 10, 2003, then you will
receive vesting credit in the amount of 1/24 of the total shares for
each full month of service provided to the Company from the Vesting
Commencement Date until the date of such Employment Termination;
(b) If you are subject to an Employment Termination that occurs (i)
prior to a Change in Control and (ii) on or following February 10, 2003
and before July 10, 2003, then you will receive vesting credit in the
amount of 1/24 of the total shares for each full
month of service provided to the Company from February 10, 2003 until
the date of such Employment Termination;
(c) If you are subject to an Employment Termination within the first 12
months after a Change in Control and before February 10, 2003, then you
will receive vesting credit in the amount of 1/24 of the total shares
for each full month of service provided to the Company from the Vesting
Commencement Date until the Employment Termination, and you will become
vested in an additional number of shares, as if you provided 12
additional months of service with the Company following the Employment
Termination; or
(d) If you are subject to an Employment Termination within the first 12
months after a Change in Control and on or following February 10, 2003,
then any Restricted Shares (as defined below) will accelerate and
become fully vested. You will only receive the vesting acceleration set
forth in this paragraph if you execute a general release (in a form
prescribed by the Company) and return all Company property.
No additional shares vest after your service as an employee, consultant
or director of the Company or a subsidiary of the Company has
terminated for any reason.
"Employment Termination" shall mean the Company's involuntary discharge
of you without Cause or your resignation after (i) a material reduction
in your level of authority or responsibility; (ii) a relocation of your
principal place of work by more than 35 miles, or (iii) following a
Change in Control, a reduction in your base salary. "Cause" shall mean
your unauthorized use or disclosure of the confidential information or
trade secrets of the Company, your conviction of a felony under the
laws of the United States or any state thereof, your gross negligence
or your continued failure to perform assigned duties.
3. Amendment of Employee Incentive Agreement. The Employee Incentive Agreement
entered into by and between the Company and Executive on _____, 200__ (the
"Incentive Agreement") shall be amended as follows:
(a) Section 2(c) of the Incentive Agreement shall be deleted and replaced
in its entirety by the following:
Employment Termination. For all purposes under this Agreement,
"Employment Termination" shall mean the occurrence of any of the
following events:
(i) The Company's involuntary discharge of Employee without Cause; or
(ii) The Employee's resignation after (i) a material reduction in the
Employee's level of authority or responsibility, (ii) a relocation of
the Employee's principal place of work by more than 35 miles, or (iii)
following a Change in Control, a reduction in the Employee's base
salary.
(b) Section 3(b) of the Incentive Agreement shall be deleted and replaced
in its entirety by the following:
Subject to the approval of the Company's Board of Directors or its
Compensation Committee, the Employee will be awarded a restricted stock
grant of ______ shares of
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the Company's Common Stock (the "Restricted Stock Grant") under a Plan.
The Restricted Stock Grant will vest in two installments, with the
vesting on each such installment vesting date being subject to
Employee's continuous provision of service to the Company from the
Vesting Commencement Date until the respective installment vesting
date, as follows: 79% of the Restricted Stock Grant will become vested
on February 10, 2003, and the remaining unvested shares of the
Restricted Stock Grant will become vested on July 10, 2003.
Notwithstanding the foregoing, and as set forth in Employee's
Restricted Stock Agreement dated _________, 200__:
(i) If the Employee experiences an Employment Termination that occurs
(A) prior to a Change in Control (as defined in the Plan) and (B)
following July 1, 2002 and before February 10, 2003, then Employee will
receive vesting credit in the amount of 1/24 of the Restricted Stock
Grant for each full month of service provided to the Company from the
Vesting Commencement Date until the date of such Employment
Termination;
(ii) If the Employee experiences an Employment Termination that occurs
(A) prior to a Change in Control and (B) on or following February 10,
2003 and before July 10, 2003, then Employee will receive vesting
credit in the amount of 1/24 of the Restricted Stock Grant for each
full month of service provided to the Company from February 10, 2003
until the date of such Employment Termination;
(iii) If the Employee experiences an Employment Termination within the
first 12 months after a Change in Control and before February 10, 2003,
then Employee will receive vesting credit in the amount of 1/24 of the
Restricted Stock Grant for each full month of service provided to the
Company from the Vesting Commencement Date until the Employment
Termination, and Employee will become vested in an additional number of
shares subject to the Restricted Stock Grant, as if Employee provided
12 additional months of service with the Company following the
Employment Termination; or
(iv) If the Employee experiences an Employment Termination within the
first 12 months after a Change in Control and on or following February
10, 2003, then any remaining unvested shares subject to the Restricted
Stock Grant will accelerate and become fully vested. The Employee will
only receive the vesting acceleration set forth in this Section 3(b) if
the Employee executes a general release (in a form prescribed by the
Company) and returns all Company property.
4. No Other Changes. Except as provided in this Amendment or as otherwise
required under applicable law, the Restricted Stock Agreements and the Incentive
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
MARIMBA, INC. EXECUTIVE
By: ___________________________ ___________________________
(Signature)
________________________________ ___________________________
(Please print name) (Please print name)
_______________________________
(Please print title)
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