EXHIBIT 10.04
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 Chief Executive Officer 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, effective September 1, 2002, the Executive shall be
paid a base salary of Three Hundred Sixty Thousand Dollars
($360,000) 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, he will
promptly execute a copy of the Company's Standard Proprietary
Information and Invention Assignment Agreement, covering all periods
of his 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, he 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 his employment for "Good Reason" (as defined
below), then:
(a) The Company shall pay the Executive Thirty Thousand Dollars
($30,000.00) 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 he 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 him 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, he 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 his 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 his continuation as Chief Executive Officer, 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 his 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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