EXHIBIT 10.05
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into by and between
Niku Corporation, a Delaware corporation (the "Company") and Xxxxxx Xxxxxxx (the
"Executive") (together the "Parties") as of October 18, 2002.
RECITALS
WHEREAS, the Executive is currently the Executive Vice President of
Planning and Strategy of the Company;
WHEREAS, the Company and the Executive have not set forth the terms and
conditions governing their employment relationship;
WHEREAS, the Company and the Executive desire to set forth the terms
and conditions governing such relationship; and
WHEREAS, the Company also wishes to obtain certain other agreements
from Executive, including a Proprietary Information and Invention Assignment
Agreement, a Tag-Along Agreement with Limar Realty Corp. #30, a Waiver and
Release Agreement, a Voting Agreement, a Non-Solicitation and Non-Interference
Agreement and the other agreements set forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the Parties
hereto agree as follows:
1. AT-WILL EMPLOYMENT. The Executive's employment with the Company is, and
will continue to be, at-will and, accordingly, may be terminated by
either party at any time and for any reason, subject to the provisions
of Section 3 below.
2. COMPENSATION.
a. Base Salary. In consideration of the services to be rendered
hereunder, the Executive shall be paid a base salary of Two
Hundred Two Thousand Five Hundred Dollars ($202,500) per year
(the "Base Salary"), payable at the time and pursuant to the
procedures regularly established by the Company.
b. Bonuses. At the sole and complete discretion of the
Compensation Committee (the "Committee") of the Company's
Board of Directors (the "Board"), the Executive may be
eligible to receive an annual performance-based bonus. Such
bonus, if any, shall be payable as determined by the
Committee.
c. Benefits. The Executive shall be entitled to participate in
such benefit plans, programs, policies and arrangements as
maintained by the Company, from time to time, for employees of
the Executive's level, so long as the Executive is eligible
under such benefit plans in accordance with their respective
terms.
3. PROPRIETARY INFORMATION AND INVENTION ASSIGNMENT AGREEMENT. The
Executive agrees that as a condition of the Company entering into this
Agreement and agreeing to make the payments hereunder, she will
promptly execute a copy of the Company's Standard Proprietary
Information and Invention Assignment Agreement, covering all periods of
her employment with the Company.
4. TAG-ALONG AGREEMENT. The Executive agrees that, as a condition of the
Company entering into this Agreement and agreeing to make the payments
hereunder, she will, if requested to do so by the Company, execute a
Tag-Along Agreement substantially in the form attached hereto as
Exhibit A.
5. TERMINATION OF EMPLOYMENT. In the event that the Company terminates the
Executive's employment with the Company for any reason other than
"Cause" (as defined below), or in the event the Executive voluntarily
resigns her employment for "Good Reason" (as defined below), then:
(a) The Company shall pay the Executive Sixteen Thousand Eight
Hundred Seventy Five Dollars ($16,875.00) per month for a
period of six months, with the first payment due within one
(1) business day of the date of termination or resignation.
(b) The Company shall provide the medical, dental and vision
benefits accorded to other executives of the Company for a
period of twelve (12) months from the date of termination or
resignation either directly or, at the option of the Company,
through reimbursement of COBRA payments.
(c) The Company shall treat Executive's Company stock options in
accordance with the plan and/or agreement governing such stock
options.
(d) The Executive (and the Executive's Family Trust, in the case
of subsection 5(d)(ii)) shall promptly execute the agreements
set forth in this Section 5(d):
(i) A Waiver and Release Agreement releasing any and all
actual or potential claims she may have against the
Company as of the date of the Waiver and Release
Agreement;
(ii) A Voting Agreement in a form reasonably satisfactory
to the Company agreeing to vote all shares owned or
controlled by her in the manner recommended
unanimously by the Board for a period ending upon the
earlier of (A) the date that is three (3) years from
the date of termination or resignation, or (B) the
date immediately following the date of closing of a
merger or consolidation of the Company with any other
corporation or entity, or other corporation
reorganization of the Company, in which the holders
of the Company's outstanding voting stock immediately
prior to such transaction own, immediately after such
transaction, securities representing less then fifty
percent (50%) of the voting power of the corporation
or other entity surviving
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such transaction, or the closing of the sale of all
or substantially all of the assets of the Company;
and
(iii) A Non-Solicitation and Non-Interference Agreement
providing that, for a period of one (1) year from the
date of termination or resignation, she will not,
either directly or indirectly:
(A) Attempt to recruit or solicit any employee
of the Company or make known to any person,
firm or corporation the names or addresses
of, or any information pertaining to, any
current or former employees of the Company.
(B) Attempt to call on, solicit or take away any
customers or clients of the Company or any
other persons, entities, or corporations
with which the Company has had or has
contemplated any business transaction or
relationship during the Executive's
employment with the Company, including, but
not limited to, investments, licenses, joint
ventures, and agreements for development.
(e) Upon execution of the agreements set forth in Section 5(d),
the Company shall pay the Executive the following additional
amounts at the times set forth below:
(i) $50,000 within one (1) business day of upon execution
of the agreements set forth in Section 5(d); and
(ii) $84,792 per quarter for three quarters, with the
first quarterly payment occurring within one (1)
business day of execution of the agreements set forth
in Section 5(d), the second occurring ninety (90)
days after the date of the first payment, and the
third quarterly payment occurring one hundred eighty
(180) days after the date of the first payment,
provided, however, that if the Company fails to make
any quarterly payment within five (5) business days
of its due date, then all remaining quarterly
payments shall become immediately due and payable,
and all agreements set forth in Section 5(d) shall be
cancelled and of no further force or effect.
(f) The Executive acknowledges and agrees that, aside from the
payments set forth in the Section 5, the Executive shall not
be entitled to receive any other severance or other form of
compensation or benefits from the Company upon the termination
of her employment.
(g) For purposes of this Agreement, "Cause" shall mean (i) the
Executive's commission of a felony or other criminal act
involving moral turpitude or any criminal act of dishonesty
that is detrimental to the Company, or (ii) the Executive's
willful and repeated violation of written Company policies
after the Executive has received written notice of such
violation. For purposes of this Agreement, "Good Reason" shall
mean (a) the Company's reduction of the Executive's duties and
responsibilities and/or compensation without the Executive's
consent, (b) the
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Board's failure to provide the Executive with its unanimous
support for her continuation as Executive Vice President of
Planning and Strategy, or (c) the Company's relocation of the
Executive to a facility or location more than 25 miles from
the Company's current principal offices in Redwood City,
California without the Executive's consent.
6. NON-DISPARAGEMENT. The Company, including its Directors, and the
Executive agree that, both during the Executive's employment with the
Company and after the termination of her employment, they will not, at
any time, make, directly or indirectly, any oral or written statements
that are disparaging of the other party or, in the case of the Company,
any of its present or former officers, directors, agents, or employees.
This provision will continue to be applicable even after any Director's
departure from the Board.
7. WITHHOLDING. The Executive acknowledges and agrees that any payments
made under the terms of this Agreement shall be subject to all
applicable tax withholding.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and assigns.
This Agreement shall be binding upon the Executive and shall not be
assignable by Executive. The provisions of this Agreement shall
continue in force notwithstanding Executive's death or disability.
9. SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF. The Company and Executive
agree that in the event of any breach by either Party of any provision
contained in this Agreement, the Company and Executive shall be
entitled (in addition to any other remedy that may be available to
them) to the extent permitted by applicable law (i) a decree or order
of specific performance to enforce the observance and performance of
such covenant, obligation or other provision, and (ii) an injunction
restraining such breach or threatened breach.
10. WAIVER. The Company's waiver of the Executive's breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by the Executive.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Executive relating to the Executive's
employment with, and termination from, the Company and this Agreement
supersedes and replaces any prior verbal or written agreements between
the Parties as to the matters covered herein. This Agreement may be
amended or altered only in a writing signed by a designee of the Board
and the Executive.
12. APPLICABLE LAW. This Agreement and all rights, duties and remedies
hereunder shall be governed by, construed and enforced in accordance
with the laws of the State of California, without reference to its
choice of law rules.
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13. SEVERABILITY. Each provision of this Agreement is severable from the
others, accordingly should any provision, portion or part of this
Agreement be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions, portions or parts
shall be unaffected and shall continue in full force and effect, and
said invalid, void or unenforceable provision(s), portion(s) or part(s)
shall be deemed not to be part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
THE COMPANY THE EXECUTIVE
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Its: CFO
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