EXHIBIT 10.11
TRANSITION AND CONSULTING
AGREEMENT
THIS TRANSITION AND CONSULTING
AGREEMENT (the “ Agreement ”) dated as of
November 14, 2003 is between Kim K. Polese (“
Executive ”) and Marimba, Inc. (“ Marimba
”), a Delaware corporation.
WHEREAS , Executive intends to resign as Chairman of
Marimba and desires to assist Marimba on a transitional basis by
providing consulting services to Marimba and continuing to serve as
a director of Marimba.
NOW THEREFORE, THE PARTIES AGREE
AS FOLLOWS:
1. Termination as Chairman of
Marimba . Executive’s employment shall terminate on
November 14, 2003 (the “ Employment Termination Date
”). Executive agrees and understands that effective as of the
date of this Agreement, she is no longer authorized to incur any
expenses, obligations or liabilities on behalf of Marimba, unless
they are reasonable travel and other business expenses in
connection with Executive’s duties as a Board member
reimbursable in accordance with Marimba’s normal expense
reimbursement policies.
2. Transition Services to
Marimba . Executive shall be engaged as a consultant to Marimba
for the period from the Employment Termination Date through June
30, 2004 (the “ Consulting Period ”) to advise
Marimba as directed by Marimba’s President and Chief
Executive Officer, with such consulting services not to exceed
twenty (20) hours per month. Executive shall continue to serve as
Chairman of the Board of Directors of Marimba following the
Employment Termination Date through December 31, 2003 and as a
director on the Board of Directors of Marimba following the
Employment Termination Date provided she continues to be elected by
the stockholders of Marimba.
3. Obligations of Marimba
.
a. In exchange for promises set
forth in this Agreement, Marimba agrees to provide Executive with
the following benefits:
(1) Marimba will pay Executive an
amount equal to $14,583.00 per month in semi-monthly installments
during the Consulting Period.
(2) On the Employment Termination
Date, Marimba will pay Executive her accrued PTO, which shall equal
240 hours as of the Employment Termination Date.
(3) Up to December 31, 2003,
Executive will continue to have use of her office and secretarial
services at the Company.
(4) Marimba will continue to make
available to Executive access to Executive’s Marimba email
address during the period that Executive serves as a Board member
of the Company. Marimba shall reimburse Executive’s phone,
Blackberry and home Internet connection expense through the
Consulting Period. Executive will be eligible to purchase
healthcare insurance coverage as permitted by the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“
COBRA ”). During the Consulting Period, all COBRA
premiums will be reimbursed by Marimba.
(5) With respect to the Marimba
stock option held by Executive as of the Employment Termination
Date, such stock option shall continue to vest and remain
exercisable for any period that Executive serves as a director of
Marimba and shall remain exercisable following Executive’s
termination as a director of Marimba, in each case in accordance
with the provisions of Executive’s stock option grant (the
“Stock Option”) under Marimba’s 1999 Omnibus
Equity Incentive Plan.
(6) Provided that Executive remains
a member of the Board of Directors of Marimba, Executive will
receive all benefits for which non-employee Board members of
Marimba are eligible, commencing on the Employment Termination
Date.
b. Executive understands and
acknowledges that Executive will not be entitled to any benefits
from Marimba other than those expressly set forth in this Section
3.
4. Obligations of Executive .
In exchange for the benefits described in Section 3, Executive
agrees to the following:
a. Executive will be bound by and
comply with the terms of that certain Executive Invention
Assignment and Confidentiality Agreement (“
Confidentiality Agreement ”), a copy of which is
attached to this Agreement as Exhibit A, provided that any
Inventions (as defined in the Confidentiality Agreement) of
Executive following the Employment Termination Date shall not be
restricted by the Confidentiality Agreement. Executive will return
all Marimba property (unless otherwise agreed in writing) and all
confidential and proprietary information in Executive’s
possession to Marimba within five business days from the later of
(a) the end of the Employment Termination Date or (b) the date
Executive ceases to be a director.
b. Executive will not solicit, or
initiate any solicitation of any Marimba Executive to leave his/her
employment with Marimba to commence a business relationship with
Executive or any other employer for a period ending one year
following the end of the Consulting Period.
5. Release . In exchange for
the benefits described in Section 3, Executive agrees to execute
the release (the “ Release ”) attached to this
Agreement as “Addendum A” on or promptly following the
Employment Termination Date, subject to the consideration and
revocation periods set forth in Section 4 of the Release. To the
extent that Executive does not sign the Release or subsequently
revokes the Release, Marimba shall not be obligated to pay the fees
or make available the benefits specified in Sections 3(a)(1) and
3(a)(4) above.
6. Arbitration . Any claim,
dispute, or controversy arising out of or in any way relating to
this Agreement or the alleged breach of this Agreement will be
submitted by the parties to binding arbitration in Santa Clara
County, California by the American Arbitration Association under
its California Employment Dispute Resolution Rules or by a judge to
be mutually agreed upon. This Section 6 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 Executive’s
obligations under Executive’s obligations under Section 4
hereof.
7. Attorneys’ Fees .
The prevailing party will be entitled to recover from the losing
party its attorneys’ fees and costs (including expert witness
fees) incurred in any arbitration, lawsuit or other proceeding
brought to enforce any right arising out of this
Agreement.
8. Successors . The
provisions of this Agreement will extend and inure to the benefit
of, and be binding upon, the respective legal successors and
assigns of Marimba and Executive in addition to Marimba and
Executive.
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9. Integration . This
Agreement constitutes the entire Agreement between the parties with
respect to the subject matter of this Agreement and supersedes all
prior negotiations and Agreements, whether written or oral with the
exception of Executive’s obligations under the
Confidentiality Agreement and/or any surviving stock option
agreements with respect to such subject matter.
10. No Oral Modification .
This Agreement may not be altered or amended except by a written
document executed by Executive and Marimba.
11. Governing Law . This
Agreement will in all respects be governed by the laws of the State
of California as applied to agreements entered into and to be
performed entirely within California between California
residents.
12. Effective Date . This
Agreement is effective as of the date set forth above, provided
that th
