exv10w37



 






EXHIBIT
10.37




August 30, 2005




Mr. Bertram W. Rankin

c/o Callidus Software Inc.

160 W. Santa Clara Street

San Jose, CA 95133




Dear Bert:



This letter is to confirm our agreement (the “Agreement”) with respect to your separation from
Callidus Software Inc. (the “Company”). To ensure that there are no ambiguities, this Agreement
explains in detail both your rights and obligations and those of the Company upon termination of
your employment.



Your employment with the Company and its subsidiaries will terminate effective as of October
6, 2005 (“Separation Date”). During the month of September you will be available to work with
Executive Staff and your team to transition your job duties as Robert Youngjohns, President and
CEO, directs, including but not be limited to being available for meetings, answering questions
regarding Marketing projects status and the like. You will be paid your regular base salary until
your Separation Date, and any vacation pay that has accrued through your Separation Date as
required by applicable law, minus any applicable withholding taxes. If you sign the attached
Release of Claims (the “Release”) and agree to be subject to the Trading Restrictions (as defined
below), the Company agrees to pay you the following, all of which shall be the “Separation
Benefits”:





(1) $179,166.67 (representing the equivalent of 10 months of base pay), minus applicable
withholding taxes, due and payable on or before October 6, 2005;




(2) $22,500.00 (representing half of your eligible second half 2005 bonus), minus applicable
withholding taxes, due and payable on or before October 6, 2005; and,




(3) You will be allowed to keep your currently assigned computer, the Dell laptop (serial
number FSWM631), and associated software, docking station and peripherals; provided
that all confidential and/or proprietary information of the Company shall be removed from
such computer to the reasonable satisfaction of the Company.


These Separation Benefits will be in lieu of any amounts that would otherwise be due to you
under any other agreement, plan or policy or applicable law in connection with your termination of
employment.




 









 








Separation Agreement with

Bertram W. Rankin

Page 2



If you are contributing to the Company’s 401(k) Plan, your contributions will cease upon your
Separation Date. You will continue to have life insurance coverage through the Company until your
Separation Date, upon which date, such coverage will cease. Furthermore, (other than as set forth
above) vesting on stock options that have been granted to you will cease upon your Separation Date.
You will have the number of days from your Separation Date specified in the applicable option
agreement (which is generally 90 days or three months) to exercise any vested options. In
consideration of the additional benefits to be provided to you in accordance with this Agreement
and the Release, you agree that you will remain subject to the terms of the Company’s insider
trading policy and blackout period as if you remained an executive officer of the Company, and that
as such you agree not to enter into any purchase or sale of the Company’s stock or any of the other
transactions described in Section 4 of the Company’s insider trading policy from September 1,
2005 (or such earlier date as the Company may next impose trading restrictions on employees)
 until two full business days after the Company has completed its third quarter earnings call
(expected to occur towards the end of October, 2005) (the “Trading Restrictions”), at which time
the Trading Restrictions shall cease and be of no further force or effect. You understand that the
Trading Restrictions will not result in an extension of the period to exercise your stock options.
For your reference, we have enclosed a copy of the Company’s current insider trading policy.
 By signing below you acknowledge that the Company will be permitted to instruct its transfer
agent not to process any transaction executed in violation of the Trading Restrictions. Should you
need assistance or have any questions with respect to the option exercise process, please contact
Virginia Sajor at (408) 808-6597. For questions relating to the insider trading policy, please
contact me at 408-808-6470.



Other than the above referenced laptop, any equipment that is property of the Company should
be returned to the Company. Any outstanding business expenses that you have incurred up to your
Separation Date, but have not submitted, must be submitted within 30 days of your Separation Date
to Patricia Ducote in Accounting.



As you are aware, your obligations under the Employment, Confidential Information and Invention
Assignment Agreement (“Employee Inventions Agreement”) will remain in effect following the
Separation Date in accordance with the terms of that agreement. For your reference, we have
enclosed a copy of your Employee Inventions Agreement.



As referred to earlier, the Company is prepared to offer you additional benefits to which you would
otherwise not be entitled in exchange for (i) an agreement to be bound by the Trading Restrictions
discussed in this Agreement and (ii) signing the attached Release. Specifically, in exchange for
the foregoing (i) and (ii), the Company is prepared to offer you the Separation Benefits. If you
wish to accept such additional benefits in consideration for the Release and your agreement to be
subject to the Trading Restrictions, your signature below and on the enclosed Release will reflect
your agreement.




 









 








Separation Agreement with

Bertram W. Rankin

Page 3



If, after carefully reviewing these terms and conditions, you wish to accept this Agreement and the
attached Release, please sign below in the places indicated and return these documents to me. You
represent you are over the age of 40. As such, in accordance with the Older Workers Benefit
Protection Act, you have up to 21 days from the date of this separation letter to accept its terms.
You should take sufficient time to consult an attorney about these terms. Once you execute this
letter, you will have an additional seven (7) days in which to revoke your acceptance. To revoke,
you must deliver to me a written statement of revocation. By your signature below, you understand
and acknowledge that you are required to repay Callidus for any amounts received by you beyond the
date of this letter in the event that you voluntarily decide to revoke your rights. By
signing this Agreement and the attached Release, you acknowledge that you fully understand the
terms of this Agreement and the Release. Should you have any questions in respect of the
foregoing, you are advised to seek legal counsel for advice.



Bert, we wish you the best of success in your future endeavors.




Sincerely,




/s/ Brian E. Cabrera




Brian E. Cabrera

Vice President, Corporate Development

& General Counsel

Callidus Software Inc.




Encl.



	 	 	 	 	 
	 	Accepted and agreed on September 15, 2005: 

 	 
	 	By:  	/s/ Bertram W. Rankin
 	 
	 	 	Bertram W. Rankin 	 
	 	 	 	 



 









 






	 	 	 	 	 



Separation Agreement with

Bertram W. Rankin

Page 4




RELEASE OF CLAIMS



Callidus Software Inc. (the “Company”) and Bertram W. Rankin (“Employee”), expressly
agree and consent to the termination of Employee’s employment effective as of October 6, 2005 in
exchange for the benefits described in the Agreement between the Company and Employee dated as
of August 30, 2005 (the “Agreement”). Employee understands that these are benefits for which
Employee is not eligible unless Employee elects to sign this Release of Claims (the “Release”) and
agrees to be subject to the Trading Restrictions described in the Agreement. The Company is
prepared to provide Employee with the Separation Benefits (as defined
in the Agreement) and
the terms of this Release in return for Employee’s agreement with the terms of this Release and the
Agreement.



In consideration of these benefits, Employee, on behalf of Employee and Employee’s spouse,
dependents, assigns, heirs, executors and administrators, hereby fully and completely release,
waive and forever discharge the Company, its past, present and future affiliates, subsidiaries,
agents, officers, directors, stockholders, employees, attorneys, insurers, successors, assigns and
other representatives from any and all claims, of any and every kind, nature and character, known
or unknown, foreseen or unforeseen, based on any act or omission occurring prior to October 6,
2005, the date of this Release, including but not limited to any claims arising out of Employee’s
offer of employment, employment or termination of employment with the Company, this Release, the
Agreement or Employee’s right to purchase, or the actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any
state or federal law. The matters released also include, but are not limited to, any claims under
federal, state or local laws, including claims arising under, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the California Constitution; the
California Worker’s Compensation Act; the Age Discrimination in Employment Act, the Older Workers’
Benefit Protection Act; the Employee Retirement and Income Security Act of 1974, or the Americans
with Disabilities Act, each as amended to date, and any common law, tort, contract or statutory
claims, and any claims for attorneys’ fees and costs. For the avoidance of doubt, nothing
contained in the foregoing shall be deemed to limit Employee’s rights to receive unemployment or
workers compensation, nor shall any of Employee’s rights as a vested beneficiary under the Company
401(k) plan be limited by the foregoing. Moreover, nothing in this Release shall remove Employee’s
right to indemnification by the Company for Employee’s actions or omissions during the period which
were in the course and scope of Employee’s employment as an executive officer of the Company under
the terms of the Company’s current directors and officers insurance policy, Employee’s
Indemnification Agreement with the Company dated August 26, 2003, or Article 10 of the Company’s
Amended and Restated Certificate of Incorporation, which rights to insurance




 









 








Separation Agreement with

Bertram W. Rankin

Page 5



and indemnification shall be limited and terminated only in accordance with the terms of such
policy, agreement or document, or to seek to enforce the Agreement.



In consideration of this Release, the Company, its past, present and future affiliates,
subsidiaries, agents, officers, directors, stockholders, employees, attorneys, insurers,
successors, assigns and other representatives hereby fully and completely release, waive and
forever discharge Employee, and Employee’s spouse, dependents, assigns, heirs, executors and
administrators from any and all claims, of any and every kind, nature and character, known or
unknown, foreseen or unforeseen, based on any act or omission occurring prior to October 6, 2005,
the date of this Release, except that the Company does not release any claims, charges, causes of
actions or complaints of whatever kind which are founded upon or relate to allegations of fraud,
intentional or willful misconduct, or other criminal conduct while employed at the Company for
which the Company, under applicable law, may not indemnify Employee in any action, suit or
proceeding brought or threatened by a third party directly or in the right of the Company.
Notwithstanding the foregoing, the Company does not waive any rights to which it may be entitled to
seek to enforce the Agreement.



Employee represents that Employee is over the age of 40.



The parties understand and agree that this Release extinguishes all claims, whether known or
unknown, foreseen or unforeseen, except for those claims expressly described above. The parties
expressly waive any rights or benefits under Section 1542 of the California Civil Code, or any
equivalent statute. California Civil Code Section 1542 provides 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.”


The parties fully understand that, if any fact with respect to any matter covered by this
Release is found hereafter to be other than or different from the facts now believed by the parties
to be true, the parties expressly accept and assume that this Release shall be and remain
effective, notwithstanding such difference in the facts.



The parties agree not to file any claim, charge, action or complaint concerning any matter
referred to in this Release. If either party has previously filed any claims, such party agrees to
take all steps necessary to cause them to be withdrawn without delay.



Employee further acknowledges that during Employee’s employment, Employee may have obtained
confidential, proprietary and trade secret information, including information relating to the
Company’s financial condition, results of operations, products, plans, designs and other valuable
confidential information. Employee agrees not to disclose any such confidential information unless
required by subpoena or court order, and that Employee will first give the Company written notice
of such subpoena or court order with reasonable advance notice to permit the Company to oppose such
subpoena or court order if it chooses to do so.




 









 








Separation Agreement with

Bertram W. Rankin

Page 6



This Release and the Agreement constitute the entire agreement between the Company and
Employee with respect to any matters referred to in this Release. This Release and the Agreement
supersede any and all of the other agreements between the Company and the Employee, except for the
Indemnification Agreement dated on or about August 26, 2003, and the Stock Option Agreements dated
on or about June 2, 2003, August 26, 2003, September 1, 2004, and February 28, 2005 (collectively,
the “Other Agreements”), all of which have been included in Employee’s termination packet and
remain in effect (except that if the Agreement and this Release conflict with any such Other
Agreements, the Agreement and this Release shall govern) and will terminate in accordance with
their respective terms. No other consideration, agreements, representations, oral statements,
understandings or course of conduct which are not expressly set forth in this Release or the
Agreement should be implied or are binding. Neither party is relying upon any other agreement,
representation, statement, omission, understanding or course of conduct which is not expressly set
forth in this Release or the Agreement. Both parties understand and agree that neither this
Release nor the Agreement shall be deemed or construed at any time or for any purposes as an
admission of any liability or wrongdoing by either the Company or the Employee. The parties also
agree that if any provision of this Release, the Agreement or the Other Agreements is deemed
invalid, the remaining provisions will still be given full force and effect. The terms and
conditions of this Release and the Agreement will be governed by, interpreted and construed in
accordance with the laws of California.



Employee agrees that, during the remaining term of his employment with the Company and for a
period of twelve (12) months immediately following the termination of Employee’s relationship with
the Company, Employee shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company’s employees to leave their employment, take away such employees from the
Company, or attempt to so solicit, induce, recruit, encourage or take away employees of the
Company, either for Employee or on behalf of any other person or entity.



Employee agrees that Employee will not impugn the business of the Company, including the use
of defamatory statements towards the Company, or its (or its subsidiaries’) officers, directors, or
former or current employees. The Company agrees that it shall not, and shall not authorize any
officer, director, or other employee of the Company to, impugn the name or reputation of Employee.
Employee further acknowledges and agrees that inquiries from future potential employers should be
directed to the Company’s CFO, who shall supply Employee’s dates of employment, position held and
salary.



Finally, Employee agrees that Employee will not disclose voluntarily or allow anyone else to
disclose either the existence of, reason for, contents of, or the discussions between himself and
the Company about this Release or the Agreement without the Company’s prior written consent, unless
required to do so by law or unless such disclosure has already been made by the Company.
Notwithstanding this provision, Employee is authorized to disclose this Release and the Agreement
to Employee’s spouse, attorneys and tax advisors on a “need to know” basis, on the condition that
they agree with the Company to hold the terms of the




 









 








Separation Agreement with

Bertram W. Rankin

Page 7



Release and the Agreement in strictest confidence. Employee is further authorized to make
appropriate disclosures as required by court order, provided that Employee notifies the Company in
writing of such legal obligations to disclose at least five (5) business days in advance of any
such disclosure.



Employee understands that the Company is subject to the rules and regulations of the
Securities and Exchange Commission (the “SEC”) and therefore may be required to disclose some or
all of the terms of this Release and/or the Agreement with the SEC, including by filing this
Release and the Agreement as an exhibit to one or more reports filed with the SEC.



Prior to execution of this Release and the Agreement, each party has apprised itself of
sufficient relevant information in order to intelligently exercise its own judgment. Each party
has had sufficient time to consult legal counsel and has had time in which to consider this Release
and the Agreement. Each party further acknowledges and agrees that this Release and the Agreement
are executed voluntarily and with full knowledge of their legal significance. Each party also
understands and agrees that if any suit is brought to enforce the provisions of this Release or the
Agreement, the prevailing party shall be entitled to its costs, expenses, and attorneys’ fees as
well as any and all other remedies specifically authorized under the law.



Each party understands that the other party’s failure to insist upon strict adherence to any
term of this Release or the Agreement on any occasion shall not be considered a waiver of such
party’s rights or deprive such party of the right to insist on strict adherence to that term or any
other term hereof or thereof.




ACCEPTANCE OF RELEASE



EACH PARTY HAS CAREFULLY READ AND FULLY UNDERSTANDS AND VOLUNTARILY AGREES TO BE SUBJECT TO
ALL THE TERMS OF THIS RELEASE IN EXCHANGE FOR THE ADDITIONAL BENEFITS DESCRIBED IN THIS RELEASE AND
THE AGREEMENT TO WHICH THEY WOULD OTHERWISE NOT BE ENTITLED.




	 	 	 	 	 
	 	 	 
	Dated: 9/15/2005 	/s/ Bert W. Rankin
 	 
	 	Bertram W. Rankin 	 
	 	 	 
	 
	 	 	 
	Dated: 9/15/2005 	/s/ Brian E. Cabrera
 	 
	 	Brian E. Cabrera 	 
	 	Vice President, Corporate Development
& General Counsel
Callidus Software Inc.