EXHIBIT 10.7
Employee Incentive Agreement
THIS AGREEMENT is entered into as of ________, 200__, by and between
_________________ (the "Employee") and MARIMBA, INC., a Delaware corporation
(the "Company").
1. Term of Agreement.
This Agreement shall remain in effect from the date hereof until the
earlier of:
(a) The date when the Employee's employment ceases and such employment
cessation does not constitute an Employment Termination; or
(b) The date when the Company has met all of its obligations under this
Agreement following an Employment Termination.
2. Definitions.
(a) Cause. For all purposes under this Agreement, "Cause" shall mean:
(i) The unauthorized use or disclosure of the confidential
information or trade secrets of the Company;
(ii) Conviction of a felony under the laws of the United States
or any state thereof;
(iii) Gross negligence; or
(iv) Continued failure to perform assigned duties.
The foregoing, however, shall not be deemed an exclusive list of all
acts or omissions that the Company (or a subsidiary of the Company) may consider
as grounds for the discharge of the Employee.
(b) Change in Control. For all purposes under this Agreement, "Change
in Control" shall mean the occurrence of any of the following events after the
date of this Agreement:
(i) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate
reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity's securities
outstanding immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders of the
Company immediately prior to such merger, consolidation or other
reorganization;
(ii) The sale, transfer or other disposition of all or
substantially all of the Company's assets;
(iii) A change in the composition of the Company's Board of
Directors, as a result of which fewer than 50% of the incumbent
directors are directors who either (i) had been directors of the
Company on the date 24 months prior to the date of the event that may
constitute a Change in Control (the "original directors") or (ii) were
elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of the aggregate of the original directors
who were still in office at the time of the election or nomination and
the directors whose election or nomination was previously so approved;
or
(iv) Any transaction as a result of which any person is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act of
1934), directly or indirectly, of securities of the Company
representing at least 50% of the total voting power represented by the
Company's then outstanding voting securities. For purposes of this
Paragraph (iv), the term "person" shall have the same meaning as when
used in sections 13(d) and 14(d) of the Exchange Act of 1934 but shall
exclude (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a parent or subsidiary and
(ii) a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of
the shares of the Company's Common Stock.
A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or to
create a holding company that will be owned in substantially the same
proportions by the persons who held the Company's securities
immediately before such transaction.
(c) Employment Termination. For all purposes under this Agreement,
"Employment Termination" shall mean the occurrence of any of the following
events after the date of this Agreement:
(i) The Company's involuntary discharge of the Employee
without Cause; or
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(ii) The Employee's resignation after (i) a material reduction
in the Employee's level of authority or responsibility, (ii) a
reduction in the Employee's base salary or (iii) a relocation of the
Employee's principal place of work by more than 35 miles.
3. Stock Options and Restricted Stock.
(a) Stock Options. Subject to the approval of the Company's Board of
Directors or its Compensation Committee, the Employee will be granted an option
to purchase ________ shares of the Company's Common Stock ("New Option"). The
exercise price per share will be equal to the fair market value per share on the
date the New Option is granted. The New Option will be subject to the terms and
conditions applicable to options granted under one of the Company's stock option
plans (the "Plan"), as described in the Plan and the applicable Stock Option
Agreement. [Upon Employee's completion of 12 months of continuous service with
the Company from the vesting commencement date, 33.33% of the New Option shares
will become vested and exercisable and upon the completion of each month of
continuous service with the Company thereafter, 1/36 of the New Option shares
will become vested and exercisable, as described in the applicable Stock Option
Agreement.] [Upon Employee's completion of each month of continuous service with
the Company from the vesting commencement date, 1/48 of the New Option shares
will become vested and exercisable, as described in the applicable Stock Option
Agreement.] If the Employee experiences an Employment Termination within the
first 12 months after a Change in Control, then Employee will [receive vesting
credit for the number of months of service provided to the Company from the
vesting commencement date of the New Option and become vested in an additional
number of New Option shares, as if Employee provided 12 additional months of
service with the Company following the Employment Termination] [become vested in
an additional number of shares subject to the New Option equal to 50% of the
shares subject to the New Option that are unvested as of the Employment
Termination]. The Employee will only receive this vesting acceleration if the
Employee executes a general release (in a form prescribed by the Company) and
returns all Company property.
(b) Restricted Stock. 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 the Company's Common Stock
("Restricted Stock Grant") under a Plan. 50% of the Restricted Stock Grant will
become vested upon the Employee's completion of 12 months of continuous service
with the Company from the vesting commencement date and 1/24 of the Restricted
Stock Grant will become vested upon the Employee's completion of each of the
next 12 months of continuous service with the Company. If the Employee
experiences an Employment Termination within the first 12 months after a Change
in Control, then Employee will receive vesting credit for the number of months
of service provided to the Company from the vesting commencement date of the
Restricted Stock Grant 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
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Termination. The Employee will only receive this vesting acceleration if the
Employee executes a general release (in a form prescribed by the Company) and
returns all Company property.
4. Cash Payment, Health Insurance and Accelerated Vesting. The
Employee shall receive the benefits described in this Section 4 if (i) the
Employee experiences an Employment Termination within the first 12 months after
a Change in Control, (ii) the Employee executes a general release (in a form
prescribed by the Company) and (iii) the Employee returns all Company property.
(a) Cash Payment. The Employee shall be entitled to a lump sum cash
payment equal to the Employee's most recent base salary amount for a [9 or 12]-
month period.
(b) Health Insurance. If the Employee elects to continue his or her
health insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act ("COBRA") following his or her Employment Termination, including COBRA
coverage for the Employee's dependents, then the Company shall pay the
Employee's monthly premium under COBRA until the date that is [9 or 12] months
following the end of the month during which the Employment Termination occurs.
(c) Accelerated Vesting. To the extent that the Employee's options that
have been granted by the Company before the date of this Agreement ("Old
Options") do not otherwise provide for the vesting acceleration described in
this Section 4(c), then (i) Employee will become vested in an additional number
of shares subject to the Old Options equal to 50% of the shares subject to the
Old Options that are unvested as of the date of the Employment Termination and
(ii) the Company's right to repurchase any shares ("Shares") of the Company's
Common Stock acquired by the exercise of the Old Options shall lapse with
respect to 50% of the Shares that are unvested and subject to the Company's
repurchase right as of the date of the Employment Termination. To the extent
provided in this Section 4(c), this Agreement shall be deemed to be an amendment
of the exercisability and vesting provisions of all stock option agreements,
stock purchase agreements and similar instruments executed by the Employee and
the Company before the date of this Agreement to evidence the Old Options that
did not otherwise provide for the vesting acceleration described in this Section
4(c).
5. Limitation on Payments.
(a) Application of Limitation. This Section 5 shall apply only if the
Employee, on an after-tax basis, would receive more value under this Agreement
after the application of this Section 5 than before the application of this
Section 5. For this purpose, "after-tax basis" shall mean a calculation taking
into account all federal and state income and excise taxes imposed on the
Employee, including (without limitation) the excise tax described in section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"). If this
Section 5 is applicable, it shall supersede any conflicting provision
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of this Agreement. The rules set forth in this Section 5 supersede all other
agreements between the Employee and the Company with respect to whether the
Company shall make a payment or property transfer to, or for the benefit of, the
Employee that would subject the Employee to the excise tax described in section
4999 of the Code, and Section 5 of this Agreement shall be deemed to be an
amendment of such agreements.
(b) Basic Rule. The Company shall not make any payment or property
transfer to, or for the benefit of, the Employee (under this Agreement or
otherwise) that would subject the Employee to the excise tax described in
section 4999 of the Code. All calculations required by this Section 5 shall be
performed by the independent auditors retained by the Company most recently
prior to the Change in Control (the "Auditors"), based on information supplied
by the Company and the Employee, and shall be binding on the Company and the
Employee. All fees and expenses of the Auditors shall be paid by the Company.
(c) Reductions. If the amount of the aggregate payments or property
transfers to the Employee must be reduced under this Section 5, then the
Employee shall direct in which order the payments or transfers are to be
reduced, but no change in the timing of any payment or transfer shall be made
without the Company's consent. As a result of uncertainty in the application of
section 4999 of the Code at the time of an initial determination by the Auditors
hereunder, it is possible that a payment will have been made by the Company that
should not have been made (an "Overpayment") or that an additional payment that
will not have been made by the Company could have been made (an "Underpayment").
In the event that the Auditors, based upon the assertion of a deficiency by the
Internal Revenue Service against the Employee that the Auditors believe has a
high probability of success, determine that an Overpayment has been made, such
Overpayment shall be treated for all purposes as a loan to the Employee that the
Employee shall repay to the Company, together with interest at the applicable
federal rate specified in section 7872(f)(2) of the Code; provided, however,
that no amount shall be payable by the Employee to the Company if and to the
extent that such payment would not reduce the amount that is subject to an
excise tax under section 4999 of the Code. In the event that the Auditors
determine that an Underpayment has occurred, such Underpayment shall promptly be
paid or transferred by the Company to, or for the benefit of, the Employee,
together with interest at the applicable federal rate specified in section
7872(f)(2) of the Code.
6. Successors.
(a) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
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(b) Employee's Successors. This Agreement and all rights of the
Employee hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
7. Arbitration.
(a) Scope of Arbitration Requirement. The parties hereby waive their
rights to a trial before a judge or jury and agree to arbitrate before a neutral
arbitrator any and all claims or disputes arising out of this Agreement and any
and all claims arising from or relating to the Employee's employment with the
Company, including (but not limited to) claims against any current or former
employee, director or agent of the Company, claims of wrongful termination,
retaliation, discrimination, harassment, breach of contract, breach of the
covenant of good faith and fair dealing, defamation, invasion of privacy, fraud,
misrepresentation, constructive discharge or failure to provide a leave of
absence, claims regarding commissions, stock options or bonuses, infliction of
emotional distress or unfair business practices, or any tort or tort-like causes
of action.
(b) Exceptions. The foregoing notwithstanding, the following are the
only claims that may be resolved in any appropriate forum (including courts of
law) as required by applicable laws then in effect: (i) claims concerning
workers' compensation benefits, (ii) claims concerning unemployment insurance
and (iii) claims concerning the validity, infringement or enforceability of any
trade secret, patent right, copyright or any other trade secret or intellectual
property held or sought by either the Employee or the Company (whether or not
arising under the Proprietary Information and Inventions Agreement between the
Employee and the Company).
(c) Procedure. The arbitrator's decision shall be written and shall
include the findings of fact and law that support the decision. The arbitrator's
decision shall be final and binding on both parties, except to the extent
applicable law allows for judicial review of arbitration awards. The arbitrator
may award any remedies that would otherwise be available to the parties if they
were to bring the dispute in court. The arbitration shall be conducted in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association; provided, however, that the arbitrator
shall allow the discovery authorized by the California Arbitration Act or the
discovery that the arbitrator deems necessary for the parties to vindicate their
respective claims or defenses. The arbitration shall take place in Santa Xxxxx
County or, at the Employee's option, the county in which the Employee primarily
worked with the Company at the time when the arbitrable dispute or claim first
arose.
(d) Costs. The parties shall share the costs of arbitration equally,
except that the Company shall bear the cost of the arbitrator's fee and any
other type of expense or cost that the Employee would not be required to bear if
he were to bring the dispute or claim in court. Both the Company and the
Employee shall be responsible for their own attorneys' fees, and the arbitrator
may not award attorneys' fees unless a statute or contract at issue specifically
authorizes such an award.
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8. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him or her at the home address that he or she most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Modifications and Waivers. No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by the Employee and by an authorized officer of
the Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(c) Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(d) No Retention Rights. Nothing in this Agreement shall confer upon
the Employee any right to continue in service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company or any subsidiary of the Company or of the Employee, which rights are
hereby expressly reserved by each, to terminate the Employee's service at any
time and for any reason, with or without Cause.
(e) Withholding Taxes. All payments made under this Agreement shall be
subject to reduction to reflect taxes or other charges required to be withheld
by law.
(f) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California (other than their choice-of-law provisions).
(g) No Assignment. This Agreement and all rights and obligations of the
Employee hereunder are personal to the Employee and may not be transferred or
assigned by the Employee at any time. The Company may assign its rights under
this Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or substantially all of the
Company's business and/or assets to such entity.
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(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
_________________________________
Employee
MARIMBA, INC.
By:______________________________
Title:___________________________
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Employee Incentive Agreement
THIS AGREEMENT is entered into as of _____________, 200__, by and
between _________________ (the "Employee") and MARIMBA, INC., a Delaware
corporation (the "Company").
1. Term of Agreement.
This Agreement shall remain in effect from the date hereof until the
earlier of:
(a) The date when the Employee's employment ceases and such employment
cessation does not constitute an Employment Termination; or
(b) The date when the Company has met all of its obligations under this
Agreement following an Employment Termination.
2. Definitions.
(a) Cause. For all purposes under this Agreement, "Cause" shall mean:
(i) The unauthorized use or disclosure of the confidential
information or trade secrets of the Company;
(ii) Conviction of a felony under the laws of the United States
or any state thereof;
(iii) Gross negligence; or
(iv) Continued failure to perform assigned duties.
The foregoing, however, shall not be deemed an exclusive list of all
acts or omissions that the Company (or a subsidiary of the Company) may consider
as grounds for the discharge of the Employee.
(b) Change in Control. For all purposes under this Agreement, "Change
in Control" shall mean the occurrence of any of the following events after the
date of this Agreement:
(i) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting power of the
continuing or surviving entity's securities outstanding immediately
after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of
the Company immediately prior to such merger, consolidation or other
reorganization;
(ii) The sale, transfer or other disposition of all or
substantially all of the Company's assets;
(iii) A change in the composition of the Company's Board of
Directors, as a result of which fewer than 50% of the incumbent
directors are directors who either (i) had been directors of the
Company on the date 24 months prior to the date of the event that may
constitute a Change in Control (the "original directors") or (ii) were
elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of the aggregate of the original directors
who were still in office at the time of the election or nomination and
the directors whose election or nomination was previously so approved;
or
(iv) Any transaction as a result of which any person is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act of
1934), directly or indirectly, of securities of the Company
representing at least 50% of the total voting power represented by the
Company's then outstanding voting securities. For purposes of this
Paragraph (iv), the term "person" shall have the same meaning as when
used in sections 13(d) and 14(d) of the Exchange Act of 1934 but shall
exclude (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a parent or subsidiary and
(ii) a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of
the shares of the Company's Common Stock.
A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or to
create a holding company that will be owned in substantially the same
proportions by the persons who held the Company's securities
immediately before such transaction.
(c) Employment Termination. For all purposes under this Agreement,
"Employment Termination" shall mean the occurrence of any of the following
events after the date of this Agreement:
(i) The Company's involuntary discharge of the Employee
without Cause; or
(ii) The Employee's resignation after (i) a material
reduction in the Employee's level of authority or
2
responsibility, (ii) a reduction in the Employee's base salary or (iii)
a relocation of the Employee's principal place of work by more than 35
miles.
3. Cash Payment, Health Insurance and Accelerated Vesting. The
Employee shall receive the benefits described in this Section 3 if (i) the
Employee experiences an Employment Termination within the first 12 months after
a Change in Control, (ii) the Employee executes a general release (in a form
prescribed by the Company) and (iii) the Employee returns all Company property.
(a) Cash Payment. The Employee shall be entitled to a lump sum cash
payment equal to the Employee's most recent base salary amount for a [6 or 9]-
month period.
(b) Health Insurance. If the Employee elects to continue his or her
health insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act ("COBRA") following his or her Employment Termination, including COBRA
coverage for the Employee's dependents, then the Company shall pay the
Employee's monthly premium under COBRA until the date that is [6 or 9] months
following the end of the month during which the Employment Termination occurs.
(c) Accelerated Vesting. To the extent that the Employee's stock
options that have been granted by the Company on or before the date of this
Agreement ("Existing Options") do not otherwise provide for the vesting
acceleration described in this Section 3(c), then (i) Employee will become
vested in an additional number of shares subject to the Existing Options [equal
to 50% of the shares subject to the Existing Options that are unvested as of the
date of the Employment Termination and (ii) the Company's right to repurchase
any shares ("Shares") of the Company's Common Stock acquired by the exercise of
the Existing Options shall lapse with respect to 50% of the Shares that are
unvested and subject to the Company's repurchase right as of the date of the
Employment Termination] [, as if Employee provided 12 additional months of
service with the Company following the Employment Termination ]. To the extent
provided in this Section 3(c), this Agreement shall be deemed to be an amendment
of the exercisability and vesting provisions of all stock option agreements and
similar instruments executed by the Employee and the Company before the date of
this Agreement to evidence the Existing Options that did not otherwise provide
for the vesting acceleration described in this Section 3(c).
4. Limitation on Payments.
(a) Application of Limitation. This Section 4 shall apply only if the
Employee, on an after-tax basis, would receive more value under this Agreement
after the application of this Section 4 than before the application of this
Section 4. For this purpose, "after-tax basis" shall mean a calculation taking
into account all federal and state income and excise taxes imposed on the
Employee, including (without limitation) the excise tax described in section
4999 of the Internal Revenue Code of 1986, as amended
3
(the "Code"). If this Section 4 is applicable, it shall supersede any
conflicting provision of this Agreement. The rules set forth in this Section 4
supersede all other agreements between the Employee and the Company with respect
to whether the Company shall make a payment or property transfer to, or for the
benefit of, the Employee that would subject the Employee to the excise tax
described in section 4999 of the Code, and Section 4 of this Agreement shall be
deemed to be an amendment of such agreements.
(b) Basic Rule. The Company shall not make any payment or property
transfer to, or for the benefit of, the Employee (under this Agreement or
otherwise) that would subject the Employee to the excise tax described in
section 4999 of the Code. All calculations required by this Section 4 shall be
performed by the independent auditors retained by the Company most recently
prior to the Change in Control (the "Auditors"), based on information supplied
by the Company and the Employee, and shall be binding on the Company and the
Employee. All fees and expenses of the Auditors shall be paid by the Company.
(c) Reductions. If the amount of the aggregate payments or property
transfers to the Employee must be reduced under this Section 4, then the
Employee shall direct in which order the payments or transfers are to be
reduced, but no change in the timing of any payment or transfer shall be made
without the Company's consent. As a result of uncertainty in the application of
section 4999 of the Code at the time of an initial determination by the Auditors
hereunder, it is possible that a payment will have been made by the Company that
should not have been made (an "Overpayment") or that an additional payment that
will not have been made by the Company could have been made (an "Underpayment").
In the event that the Auditors, based upon the assertion of a deficiency by the
Internal Revenue Service against the Employee that the Auditors believe has a
high probability of success, determine that an Overpayment has been made, such
Overpayment shall be treated for all purposes as a loan to the Employee that the
Employee shall repay to the Company, together with interest at the applicable
federal rate specified in section 7872(f)(2) of the Code; provided, however,
that no amount shall be payable by the Employee to the Company if and to the
extent that such payment would not reduce the amount that is subject to an
excise tax under section 4999 of the Code. In the event that the Auditors
determine that an Underpayment has occurred, such Underpayment shall promptly be
paid or transferred by the Company to, or for the benefit of, the Employee,
together with interest at the applicable federal rate specified in section
7872(f)(2) of the Code.
5. Successors.
(a) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
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(b) Employee's Successors. This Agreement and all rights of the
Employee hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
6. Arbitration.
(a) Scope of Arbitration Requirement. The parties hereby waive their
rights to a trial before a judge or jury and agree to arbitrate before a neutral
arbitrator any and all claims or disputes arising out of this Agreement and any
and all claims arising from or relating to the Employee's employment with the
Company, including (but not limited to) claims against any current or former
employee, director or agent of the Company, claims of wrongful termination,
retaliation, discrimination, harassment, breach of contract, breach of the
covenant of good faith and fair dealing, defamation, invasion of privacy, fraud,
misrepresentation, constructive discharge or failure to provide a leave of
absence, claims regarding commissions, stock options or bonuses, infliction of
emotional distress or unfair business practices, or any tort or tort-like causes
of action.
(b) Exceptions. The foregoing notwithstanding, the following are the
only claims that may be resolved in any appropriate forum (including courts of
law) as required by applicable laws then in effect: (i) claims concerning
workers' compensation benefits, (ii) claims concerning unemployment insurance
and (iii) claims concerning the validity, infringement or enforceability of any
trade secret, patent right, copyright or any other trade secret or intellectual
property held or sought by either the Employee or the Company (whether or not
arising under the Proprietary Information and Inventions Agreement between the
Employee and the Company).
(c) Procedure. The arbitrator's decision shall be written and shall
include the findings of fact and law that support the decision. The arbitrator's
decision shall be final and binding on both parties, except to the extent
applicable law allows for judicial review of arbitration awards. The arbitrator
may award any remedies that would otherwise be available to the parties if they
were to bring the dispute in court. The arbitration shall be conducted in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association; provided, however, that the arbitrator
shall allow the discovery authorized by the California Arbitration Act or the
discovery that the arbitrator deems necessary for the parties to vindicate their
respective claims or defenses. The arbitration shall take place in Santa Xxxxx
County or, at the Employee's option, the county in which the Employee primarily
worked with the Company at the time when the arbitrable dispute or claim first
arose.
(d) Costs. The parties shall share the costs of arbitration equally,
except that the Company shall bear the cost of the arbitrator's fee and any
other type of expense or cost that the Employee would not be required to bear if
he were to bring the dispute or claim in court. Both the Company and the
Employee shall be responsible for their own attorneys' fees, and the arbitrator
may not award attorneys' fees unless a statute or contract at issue specifically
authorizes such an award.
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7. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him or her at the home address that he or she most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Modifications and Waivers. No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by the Employee and by an authorized officer of
the Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(c) Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(d) No Retention Rights. Nothing in this Agreement shall confer upon
the Employee any right to continue in service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company or any subsidiary of the Company or of the Employee, which rights are
hereby expressly reserved by each, to terminate the Employee's service at any
time and for any reason, with or without Cause.
(e) Withholding Taxes. All payments made under this Agreement shall be
subject to reduction to reflect taxes or other charges required to be withheld
by law.
(f) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California (other than their choice-of-law provisions).
(g) No Assignment. This Agreement and all rights and obligations of the
Employee hereunder are personal to the Employee and may not be transferred or
assigned by the Employee at any time. The Company may assign its rights under
this Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or substantially all of the
Company's business and/or assets to such entity.
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(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
___________________________________________
Employee
MARIMBA, INC.
By:________________________________________
Title:_____________________________________
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