EXHIBIT 10.19
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Agreement") is made
as of July 29, 2002 by and between Xxxxxxx Corporation ("Xxxxxxx") and Niku
Corporation ("Niku").
WHEREAS, as of May 7, 1999, Xxxxxxx, as landlord, and Niku, as tenant,
entered into a certain Lease Agreement and Addendum and an Addendum dated March
15, 2001 thereto (collectively "the Lease"), a copy of which is attached hereto
as Exhibit "A" and incorporated herein, by which Lease Niku leased from Xxxxxxx
premises commonly known as The Xxxxxxx Building located at 000 Xxxx Xxxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx and more fully described in the Lease;
WHEREAS, a dispute arose between Xxxxxxx and Niku (collectively "the
Parties") regarding, among other things, the respective obligations of the
Parties arising out of the Lease and out of subsequent events related thereto;
WHEREAS, the dispute led to filing of a lawsuit between the Parties that
is currently pending in the Superior Court of the State of California in and for
the County of San Mateo, the short title of which action is Xxxxxxx Corporation
v. Niku Corporation, No. CIV 419306 in the files of said court (the "Court
Action"); and
WHEREAS, Xxxxxxx and Niku (collectively "the Parties") are mutually
desirous of finally settling their dispute and terminating the Court Action and
compromising and
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forever discharging all claims, demands, liabilities and causes of action
(collectively "Claims") which Xxxxxxx now has or may have against Niku and/or
which Niku now has or may have against Xxxxxxx, in any manner arising out of the
Lease or the Court Action, or out of any subject matter whatsoever, regardless
of any present lack of knowledge on the part of either of said Parties of any
such possible Claim;
NOW, THEREFORE, for good and valuable consideration, including the
mutual covenants herein contained, receipt of said consideration being hereby
acknowledged, the Parties agree as follows:
1. Reinstatement and Amendment of the Lease. The Parties agree that
as of August 1, 2002, the Lease shall be effective and binding according to its
terms as amended in the manner set forth in the Amendment to Lease
("Amendment"), a copy of which is attached hereto as Exhibit "B", which
Amendment shall be executed by the Parties as part of the settlement entered
into between them.
2. Settlement Payment and Terms.
(a) On Monday, July 29, 2002 Niku shall direct Mid Peninsula
Bank to issue a cashier's check in favor of Xxxxxxx in
the amount of One Million Eight Hundred Forty Two
Thousand Seven Hundred Eighty Seven Dollars and Forty
Cents ($1,842,787.40) and deliver such check to Xxxxxxx
upon receipt thereof, in full satisfaction of all Claims
asserted by Xxxxxxx against Niku, including but not
limited to Claims for the Monthly Installment,
Additional Rent (each as defined in the
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Lease) and any other amounts due, owing or payable from
or by Niku for the period from the commencement of the
Lease through July 31, 2002. The Parties agree that this
payment constitutes a liquidation of Xxxxxxx'x secured
position in the Undertaking of Corporate Surety filed on
May 16, 2002 in the amount of $6,300,000 filed in the
Court Action.
(b) Xxxxxxx agrees to amend the Lease as set forth in the
Lease Amendment and, upon receipt of the cashier's check
referenced in subparagraph (a) above, to deliver the
keys to the Premises and permit entry thereon.
3. Security Deposit. Also on Monday, July 29, 2002, Niku shall
direct a bank in the Bay Area, California to issue a letter of credit for the
benefit of Xxxxxxx in the sum of One Million One Hundred Seven Thousand Six
Hundred Four Dollars ($1,107,604), which amount shall serve as an additional
Security Deposit pursuant to and as defined in paragraph 5 of the Lease. The
Parties acknowledge that said letter of credit, when issued, shall increase the
total Security Deposit paid by Niku and held by Xxxxxxx to One Million Two
Hundred Sixty Seven Thousand Six Hundred Four Dollars ($1,267,604). Upon default
under the Lease, and provided all conditions necessary to entitle Xxxxxxx to
obtain Judgment pursuant to the Stipulation Re Filing and Entry of Judgment
executed herewith have been satisfied, Xxxxxxx may draw against the Letter of
Credit portion of the Security Deposit, or as provided in Section 1A of the
Amendment. Nothing herein shall affect Xxxxxxx'x rights to apply the $160,000
cash
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portion of the Security Deposit as provided for in the Lease. Xxxxxxx shall have
the senior position security interest in the Security Deposit.
4. Stipulated Judgment. Concurrently with the execution of this
Agreement, Niku shall execute and deliver to Xxxxx X. Xxxxx, Esq. ("Xx. Xxxxx"),
counsel for Xxxxxxx, a form of Stipulation Re Filing and Entry of Judgment
("Stipulation"), a copy of which is attached hereto as Exhibit "C". Xx. Xxxxx
agrees to hold the original Stipulation as custodian thereof unless and until
all conditions have occurred that authorize it to be filed with the Court and
Judgment entered thereon. In the event the original Stipulation is not filed
prior to June 30, 2005, Xx. Xxxxx shall return the original Stipulation to
counsel for Niku.
5. General Release. Xxxxxxx hereby releases and forever discharges
Niku, and each of Niku's past and present officers, directors, employees,
agents, shareholders, successors, assigns, attorneys and representatives
(collectively "Niku's Representatives"), and Niku hereby releases and forever
discharges Xxxxxxx, and each of its past and present officers, directors,
employees, agents, shareholders, successors, assigns, attorneys and
representatives (collectively "Xxxxxxx'x Representatives"), from any and all
Claims of any kind now constituting or in any manner arising out of the subject
matter of the Court Action (including any and all Claims for future damages
resulting therefrom), and from any and all Claims of whatsoever character
arising within the period from the beginning of the world to the effective date
of this Agreement. This release of Claims is intended to and shall be completely
effective and binding
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regardless of whether any such Claim has been heretofore asserted, and
regardless of any present lack of knowledge on the part of either of the Parties
of any such Claim, or of any act or circumstances pertaining thereto. In this
respect, Xxxxxxx and Niku, and each of them, hereby expressly waive the benefits
and provisions of Section 1542 of the Civil Code of the State of California and
any similar law of any state or territory of the United States or other
jurisdiction. Said section provides as follows:
Sec. 1542. General release: extent.
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.
Nothing in this Release shall apply to Claims hereafter arising from a breach of
this Agreement or the Lease as amended by the Amendment. However this Release
does extend to and include any Claim by any party or any of its Representatives
against the other Party or its Representatives for malicious prosecution, abuse
of process, wrongful attachment, or other tort. To that end, each Party agrees
to indemnify the other Party and its Representatives, and hold them harmless
from and against any Claim that may hereafter be asserted by its Representatives
against the other Party or its Representatives on any Claim subject to this
Release.
6. Requests and Stipulation for Release of Attachment, Discharge of
Sureties and Notice of Settlement. Each Party hereby authorizes and directs its
attorney of record, as soon as possible following execution of this Agreement
and delivery of the cashier's check in paragraph 2 and the Letter of Credit in
paragraph 3, to execute and file with the Court each document necessary to do
the following: (a)advise the Court that the case is conditionally settled
pursuant to Rules of Court 225(c), (b)
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vacate and/or obtain a release of the writ of attachment previously granted in
Xxxxxxx'x favor in the Court Action; and (c) discharge all sureties that have
posted undertakings, bonds or deposits, including the Undertaking of Corporate
Surety posted on May 16, 2002 by International Fidelity Insurance Company and
the Undertaking filed on April 29, 2002 by American Contractors Indemnity
Company in connection with attachment proceedings and release all undertakings,
bonds or deposits posted thereby and (d) dismiss with prejudice the
cross-complaints in the Court Action. When all amounts are paid under the Lease,
Xxxxxxx will dismiss the Court Action with prejudice.
7. Splitting of Commission Claims. In the event that any real
estate broker or firm should assert a claim or commission based upon a contract
to obtain a tenant for the Premises prior to August 1, 2002, the Parties agree
to cooperate to minimize the amount of such claim and to share equally any cost
incurred in responding to such claim, including any payment made to the
claimant.
8. Occupancy of the Premises. Upon execution of the Agreement and
the Amendment and delivery or transfer by Niku of the payment required under
paragraph 2 above and issuance of the Letter of Credit as set forth in paragraph
3 above, Xxxxxxx agrees to permit Niku to occupy the Premises and to cooperate
with Niku as may be reasonably necessary to assure that Niku's occupancy is
completed by July 31, 2002. Niku shall not be assessed any additional charges
for rent or otherwise as a result of taking occupancy prior to August 1, 2002.
9. Personal Property. The Parties agree that all personal property
currently located at the Premises, including property transferred by Niku
pursuant to a Xxxx of Sale
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dated November 2001 ("Xxxx of Sale"), a copy of which is attached hereto as
Exhibit "D", is the property of Xxxxxxx and is owned by Xxxxxxx free and clear
of any claim by Niku. The Parties further agree that all obligations of the
Parties under the Xxxx of Sale have been fully satisfied.
10. Extinguishment of Prior Notices and Agreements. The Parties
agree that all prior agreements, including without limitation any oral or
written agreement terminating the Lease, and all notices, including without
limitation any three-day notice to quit or pay rent or any notice of default
under the Lease, are extinguished, unenforceable and of no effect, except for
(a) the Lease as modified by the Amendment, (b) the Xxxx of Sale and (c) this
Agreement including all attachments hereto.
11. Nonadmission by the Parties. Neither the settlement of the Court
Action, the payment of any consideration, the execution or delivery of this
Agreement, nor anything contained in this Agreement shall be taken or construed,
at any time or place, for any purpose whatsoever, to be an admission on the part
of any party that such Party or any of its Representatives at any time breached
any duty or committed any act which gave rise to liability as alleged in any of
the pleadings in the Court Action or otherwise.
12. Attorneys' Fees and Breach. Each Party shall bear its own
attorneys' fees, consultant and expert fees, costs and expenses arising out of
the Court Action. In the event that an action is brought for breach of this
Agreement and it is found that one Party is in breach hereof, recovery may be
had against that Party not only for the amount of any compensatory injury
resulting therefrom, but also for reasonable attorneys' fees calculated at the
standard hourly rates of the attorneys retained, and
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other costs and expenses incurred in prosecuting the suit for breach.
13. Inurement. This Agreement shall be binding upon and inure to the
benefit of the Representatives of each Party hereto. Each Party acknowledges and
warrants that each of its Representatives shall be and is bound by the terms of
this Agreement to the same extent as that Party itself is bound.
14. Counterparts. This Agreement, if so desired, may be executed in
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts together shall constituted one and the same instrument.
Executed copies of the Agreement transmitted by facsimile shall be fully binding
and effective upon receipt, but each Party promptly shall deliver to the other
an executed copy of the Agreement bearing an original signature.
15. Representation by Counsel. The Parties acknowledge that they
have had an opportunity to be represented by counsel of their own choosing in
the negotiation and preparation of this Agreement, that they did in fact
thoroughly discuss all aspects of this Agreement with their respective counsel,
that they have carefully and fully read this Agreement, that they understand it
and that they freely and voluntarily are entering into it.
16. Governing Law/Construction. This Agreement is made and entered
into in the State of California and shall be governed by, interpreted, enforced
and construed in all respects in accordance with the laws of the State of
California. All language in this Agreement shall be construed as a whole and
according to its fair meaning, and shall not be strictly construed for or
against any of the Parties and shall be construed as if
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both parties had drafted this Agreement. Any action for breach of this Agreement
shall be filed in the Superior Court of California, County of San Mateo.
17. Entire Agreement. This Agreement, together with the Lease as
amended by the Amendment, and the attachments hereto, shall constitute the
entire agreement and understanding between the Parties. The Parties warrant that
they have all necessary authority to enter this Agreement. Each person who signs
this Agreement on behalf of a Party represents and warrants that he or she is
authorized to sign this Agreement. This Agreement may not be altered, amended,
modified or otherwise changed in any respect except by a writing duly executed
by an authorized agent of each of the Parties hereto.
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18. Continuing Jurisdiction. The Parties agree that this Agreement
is subject to CCP Section 664.6 and the Parties request that the Court retain
jurisdiction over the Parties to enforce the settlement until performance in
full of the terms of the settlement. In the event the amounts in paragraph 2 are
not timely made, Xxxxxxx may, at its election, declare this Agreement void such
that this Agreement and all exhibits thereto are rescinded.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date and year first above written.
Approved and Agreed:
Xxxxxxx Corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxx X. Xxxxx, Esq. Xxxxxx Xxxxxxx, President
Approved and Agreed:
Niku Corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxx X. Xxxxxx, Esq. Xxxxxx Xxxxxx
Chief Financial Officer
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