EXHIBIT 99.1
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SEPARATION, RELEASE AND NON-COMPETITION AGREEMENT
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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
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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
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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").
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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
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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
