|
EXHIBIT 99.1
------------
SEPARATION, RELEASE AND NON-COMPETITION AGREEMENT
-------------------------------------------------
THIS SEPARATION, RELEASE AND NON-COMPETITION AGREEMENT
("Agreement")
is entered into as of January 28, 2005, by and between Niku
Corporation (the
"Company") and Mark A. Moore ("Employee") (together the
"Parties").
R E C I T A L S
---------------
WHEREAS, Employee is employed by the Company as Executive
Vice
President, Products and Services.
WHEREAS, the Parties have decided mutually to terminate
Employee's
employment relationship with the Company and desire to resolve,
fully and
finally, all outstanding matters between them; and
NOW THEREFORE, in consideration of the mutual covenants and
agreements
set forth hereinafter, and for other good and valuable
consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties intending
to be legally bound, hereby agree as follows:
AGREEMENT
---------
1. EMPLOYEE'S SEPARATION. Pursuant to this Agreement,
Employee's
separation from the Company shall be effective as of January 31,
2005 (the
"Separation Date").
2. CONSIDERATION.
a. In consideration of Employee's full waiver and release of
all
claims and the other agreements and covenants contained herein
and provided
that Employee has not exercised any revocation rights as
provided in Section 4,
below, the Company shall provide Employee with the following: i)
$30,000,
payable eight days following the Separation Date; ii) the sum
that Employee
would receive under the Company's Performance Compensation
Program,
notwithstanding the fact that Employee will not be an employee
on the date
required to receive the payments under such program, payable on
the date that
all other participants in such plan receive such funds; iii)
acceleration of
the exercisability of unvested options to purchase forty-four
thousand two
hundred and four (44,204) shares of the Company; and iv)
extension of the date
by which those options must be exercised from ninety (90) days
from his
Separation Date to one hundred and twenty (120) days from his
Separation Date
(collectively, the "Separation Payment").
<PAGE>
b. Employee acknowledges and agrees that the Company's agreement
to
provide the Separation Payment described above constitutes
consideration beyond
which he would otherwise be entitled to and, but for the mutual
covenants set
forth in this Agreement, the Company would not otherwise be
obligated to
provide.
c. Except for the Separation Payment described above and payment
for
any salary, commissions and unused vacation earned on or before
the Separation
Date and health benefits through the Company's health plan
through the
Separation Date, Employee shall not be entitled to receive any
other
compensation or benefits of any sort including, without
limitation, salary,
bonuses, short-term or long-term disability benefits or any
other form of
compensation or benefits from the Company or any of its
officers, directors,
employees, agents, insurance companies, subsidiaries, successors
or assigns at
any time.
3. MUTUAL RELEASE AND WAIVER.
a. In consideration of the Separation Payment made pursuant
to
Section 2(a) above, Employee hereby forever releases and
discharges the Company
and its affiliates, successors and assigns, as well as each of
its past and
present officers, directors, employees, agents, attorneys and
shareholders
(collectively, the "Released Parties"), from any and all claims,
charges,
complaints, liens, demands, causes of action, obligations,
damages and
liabilities, known or unknown, suspected or unsuspected, that
Employee had, now
has or may hereafter claim to have against the Released Parties
arising out of
or relating in any way to Employee's employment with, and
termination from, the
Company or otherwise relating to any of the Released Parties
from the beginning
of time to the effective date of this Agreement. This Release
specifically
extends to, without limitation, any and all claims or causes of
action arising
under Employee's Offer Letter as well as any claims or causes of
action for
wrongful termination, breach of an express or implied contract,
breach of the
covenant of good faith and fair dealing, breach of fiduciary
duty, fraud,
misrepresentation, defamation, slander, infliction of emotional
distress,
disability, loss of future earnings, and any claims under any
applicable state,
federal or local statutes and regulations, including, but not
limited to, the
Civil Rights Act of 1964, as amended, the Fair Labor Standards
Act, as amended,
the Americans with Disabilities Act of 1990, as amended, the
Rehabilitation Act
of 1973, as amended, the Employee Retirement Income Security Act
of 1974, as
amended, the Age Discrimination in Employment Act of 1967, as
amended ("ADEA"),
the Family and Medical Leave Act, the California Family Rights
Act, as amended
and the California Fair Employment and Housing Act, as amended.
Employee's
release and discharge excludes all claims to vested benefits,
including 401K
benefits, and all claims for indemnity under law, including
California Labor
Code section 2802, insurance policies, Company Bylaws, and all
other sources of
indemnity.
b. For the purpose of implementing a full and complete
release,
Employee understands and agrees that this Agreement is intended
to include all
claims, if any, which Employee may have and which Employee does
not now know or
suspect to exist in his favor against the Released Parties and
this Agreement
extinguishes those claims. Accordingly, Employee expressly
waives all rights
afforded by Section 1542 of the Civil Code of the State of
California ("Section
1542"). Section 1542 states as follows:
2
<PAGE>
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.
c. In consideration of Employee's release pursuant to sections
2a and
2b above, the Company hereby forever releases and discharges the
Employee and
his agents, attorneys and heirs (collectively, the "Released
Employee
Parties"), from any and all claims, charges, complaints, liens,
demands, causes
of action, obligations, damages and liabilities, known or
unknown, suspected or
unsuspected, that the Company had, now has or may hereafter
claim to have
against the Released Employee Parties arising out of or relating
in any way to
Employee's employment with, and termination from, the Company or
otherwise
relating to any of the Released Employee Parties from the
beginning of time to
the effective date of this Agreement. This Release specifically
extends to,
without limitation, any and all claims or causes of action
arising under
Employee's Offer Letter as well as any claims or causes of
action for breach of
an express or implied contract, breach of the covenant of good
faith and fair
dealing, breach of fiduciary duty, fraud, misrepresentation,
defamation,
slander, infliction of emotional distress, loss of future
earnings, and any
claims under any applicable state, federal or local statutes and
regulations.
d. For the purpose of implementing a full and complete release,
the
Company understands and agrees that this Agreement is intended
to include all
claims, if any, which the Company may have and which the Company
does not now
know or suspect to exist in its favor against the Released
Employee Parties and
this Agreement extinguishes those claims. Accordingly, the
Company expressly
waives all rights afforded by Section 1542 of the Civil Code of
the State of
California ("Section 1542"). Section 1542 states 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.
4. REVIEW AND REVOCATION PERIOD. Employee acknowledges that he
is waiving
his rights under the ADEA and the Older Worker's Benefit
Protection Act and
therefore, in compliance with those statutes, acknowledges
that
| 
