Exhibit 4.8


 


NIKU CORPORATION


 


2000 EQUITY INCENTIVE PLAN


 


As Adopted December 8, 1999


 


As Amended and Restated Effective February 11, 2003


 


1.                                      PURPOSE.  The purpose of this Plan is to provide
incentives to attract, retain and motivate eligible persons whose present and
potential contributions are important to the success of the Company, its Parent
and Subsidiaries, by offering them an opportunity to participate in the Company’s
future performance through awards of Options, Restricted Stock and Stock Bonuses.  Capitalized terms not defined in the text are
defined in Section 23.


 


2.                                      SHARES SUBJECT TO THE PLAN.


 


2.1                                 Number of Shares Available.  Subject to Sections 2.2 and 18, the total
number of Shares reserved and available for grant and issuance pursuant to this
Plan will be 6,000,000 Shares plus Shares that are subject to: (a) issuance
upon exercise of an Option but cease to be subject to such Option for any
reason other than exercise of such Option; (b) an Award granted hereunder
but are forfeited or are repurchased by the Company at the original issue
price; and (c) an Award that otherwise terminates without Shares being
issued.  In addition, any authorized
shares not issued or subject to outstanding grants under the Company’s 1998
Stock Plan (the “Prior Plan”) on the Effective
Date (as defined below) and any shares issued under the Prior Plan that are
forfeited or repurchased by the Company or that are issuable upon exercise of
options granted pursuant to the Prior Plan that expire or become unexercisable
for any reason without having been exercised in full, will no longer be
available for grant and issuance under the Prior Plan, but will be available
for grant and issuance under this Plan. 
In addition, on each January 1, the aggregate number of Shares reserved
and available for grant and issuance pursuant to this Plan will be increased
automatically by a number of Shares equal to 5% of the total outstanding shares
of the Company as of the immediately preceding December 31, provided that
no more than 20,000,000 shares shall be issued as ISOs (as defined in Section 5
below).  At all times the Company shall
reserve and keep available a sufficient number of Shares as shall be required
to satisfy the requirements of all outstanding Options granted under this Plan
and all other outstanding but unvested Awards granted under this Plan.


 


2.2                                 Adjustment of Shares.  In the event that the number of outstanding
shares is changed by a stock dividend, recapitalization, stock split, reverse
stock split, subdivision, combination, reclassification or similar change in
the capital structure of the Company without consideration, then (a) the
number of Shares reserved for issuance under this Plan, (b) the number of
Shares that may be granted pursuant to Sections 3 and 9 below, (c) the
Exercise Prices of and number of Shares subject to outstanding Options, and (d) the
number of Shares subject to other outstanding Awards will be proportionately
adjusted, subject to any required action by the Board or the stockholders of
the Company and compliance with applicable securities laws; provided, however,
that fractions of a Share will not be issued but will either be replaced by a
cash payment equal to the Fair Market Value of such fraction of a Share or will
be rounded up to the nearest whole Share, as determined by the Committee.


 


3.                                      ELIGIBILITY.  ISOs (as defined in Section 5 below) may
be granted only to employees (including officers and directors who are also
employees) of the Company or of a Parent or Subsidiary of the Company.  All other Awards may be granted to employees,
officers, directors, consultants and advisors of the Company or any Parent or
Subsidiary of the Company; provided such consultants and advisors render
bona fide services not in connection with the offer and sale of securities in a
capital-raising transaction.  No person
will be eligible to receive more than 2,000,000 Shares in any calendar year
under this Plan pursuant to the grant of Awards hereunder, other than new
employees of the Company or of a Parent or Subsidiary of the Company (including
new employees who are also officers and directors of the Company or any Parent
or Subsidiary of the Company), who are eligible to receive up to a maximum of
2,500,000 Shares in the calendar year in which they commence their employment.  A person may be granted more than one Award
under this Plan.


 





















 


4.                                      ADMINISTRATION.


 


4.1                                 Committee Authority.  This Plan will be administered by the
Committee or by the Board acting as the Committee.  Except for automatic grants to Outside
Directors pursuant to Section 9 hereof, and subject to the general
purposes, terms and conditions of this Plan, and to the direction of the Board,
the Committee will have full power to implement and carry out this Plan.  Except for automatic grants to Outside Directors
pursuant to Section 9 hereof, the Committee will have the authority to:


 


(a)                                  construe
and interpret this Plan, any Award Agreement and any other agreement or
document executed pursuant to this Plan;


 


(b)                                 prescribe,
amend and rescind rules and regulations relating to this Plan or any
Award;


 


(c)                                  select
persons to receive Awards;


 


(d)                                 determine
the form and terms of Awards;


 


(e)                                  determine
the number of Shares or other consideration subject to Awards;


 


(f)                                    determine
whether Awards will be granted singly, in combination with, in tandem with, in
replacement of, or as alternatives to, other Awards under this Plan or any
other incentive or compensation plan of the Company or any Parent or Subsidiary
of the Company;


 


(g)                                 grant
waivers of Plan or Award conditions;


 


(h)                                 determine
the vesting, exercisability and payment of Awards;


 


(i)                                     correct
any defect, supply any omission or reconcile any inconsistency in this Plan,
any Award or any Award Agreement;


 


(j)                                     determine
whether an Award has been earned; and


 


(k)                                  make
all other determinations necessary or advisable for the administration of this
Plan.


 


4.2                                 Committee Discretion.  Except for automatic grants to Outside
Directors pursuant to Section 9 hereof, any determination made by the
Committee with respect to any Award will be made in its sole discretion at the
time of grant of the Award or, unless in contravention of any express term of
this Plan or Award, at any later time, and such determination will be final and
binding on the Company and on all persons having an interest in any Award under
this Plan.  The Committee may delegate to
one or more officers of the Company the authority to grant an Award under this
Plan to Participants who are not Insiders of the Company.


 


5.                                      OPTIONS.  The Committee may grant Options to eligible
persons and will determine whether such Options will be Incentive Stock Options
within the meaning of the Code (“ISO”) or
Nonqualified Stock Options (“NQSOs”),
the number of Shares subject to the Option, the Exercise Price of the Option,
the period during which the Option may be exercised, and all other terms and
conditions of the Option, subject to the following:


 


5.1                                 Form of Option Grant.  Each Option granted under this Plan will be
evidenced by an Award Agreement which will expressly identify the Option as an
ISO or an NQSO (“Stock Option Agreement”),
and, except as otherwise required by the terms of Section 9 hereof, will
be in such form and contain such provisions (which need not be the same for
each Participant) as the Committee may from time to time approve, and which
will comply with and be subject to the terms and conditions of this Plan.


 


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5.2                                 Date of Grant.  The date of grant of an Option will be the
date on which the Committee makes the determination to grant such Option,
unless otherwise specified by the Committee. 
The Stock Option Agreement and a copy of this Plan will be delivered to
the Participant within a reasonable time after the granting of the Option.


 


5.3                                 Exercise Period.  Options may be exercisable within the times
or upon the events determined by the Committee as set forth in the Stock Option
Agreement governing such Option; provided, however, that no
Option will be exercisable after the expiration of ten (10) years from the
date the Option is granted; and provided further that no ISO granted to
a person who directly or by attribution owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or of any
Parent or Subsidiary of the Company (“Ten Percent Stockholder”)
will be exercisable after the expiration of five (5) years from the date
the ISO is granted.  The Committee also
may provide for Options to become exercisable at one time or from time to time,
periodically or otherwise, in such number of Shares or percentage of Shares as
the Committee determines; provided, however, if and to the extent required by
applicable law in that State at the time of grant, Options granted to
individuals other than officers, directors or consultants of the Company
residing in the State of California (the “California Options”) shall be
exercisable at the rate of at least 20% per year over five years from the date
of grant.


 


5.4                                 Exercise Price.  The Exercise Price of an Option will be
determined by the Committee when the Option is granted and may be not less than
85% of the Fair Market Value of the Shares on the date of grant; provided that:
(i) the Exercise Price of an ISO will be not less than 100% of the Fair
Market Value of the Shares on the date of grant; and (ii) the Exercise
Price of any ISO granted to a Ten Percent Stockholder will not be less than
110% of the Fair Market Value of the Shares on the date of grant.  Payment for the Shares purchased may be made
in accordance with Section 8 of this Plan.


 


5.5                                 Method of Exercise.  Options may be exercised only by delivery to
the Company of a written stock option exercise agreement  (the “Exercise Agreement”)
in a form approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the restrictions
imposed on the Shares purchased under such Exercise Agreement, if any, and such
representations and agreements regarding Participant’s investment intent and
access to information and other matters, if any, as may be required or
desirable by the Company to comply with applicable securities laws, together
with payment in full of the Exercise Price for the number of Shares being
purchased.


 


5.6                                 Termination.  Notwithstanding the exercise periods set forth
in the Stock Option Agreement, exercise of an Option will always be subject to
the following:


 


(a)                                  If
the Participant is Terminated for any reason except death or Disability, then
the Participant may exercise such Participant’s Options only to the extent that
such Options would have been exercisable upon the Termination Date no later
than three (3) months after the Termination Date (or such shorter or
longer time period, which period may not be less than thirty (30) days nor more
than five (5) years as may be determined by the Committee, with any
exercise beyond three (3) months after the Termination Date deemed to be
an NQSO), but in any event, no later than the expiration date of the Options.


 


(b)                                 If
the Participant is Terminated because of Participant’s death or Disability (or
the Participant dies within three (3) months after a Termination other
than for Cause or because of Participant’s Disability), then Participant’s
Options may be exercised only to the extent that such Options would have been
exercisable by Participant on the Termination Date and must be exercised by
Participant (or Participant’s legal representative or authorized assignee) no
later than twelve (12) months after the Termination Date (or such shorter or
longer time period, which period may not be less than six (6) months nor
more than five (5) years as may be determined by the Committee, with any
such exercise beyond (a) three (3) months after the Termination Date
when the Termination is for any reason other than the Participant’s death or
Disability, or (b) twelve (12) months after the Termination


 


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Date
when the Termination is for Participant’s death or Disability, deemed to be an
NQSO), but in any event no later than the expiration date of the Options.


 


(c)                                  Notwithstanding
the provisions in paragraph 5.6(a) above, if a Participant is terminated
for Cause, neither the Participant, the Participant’s estate nor such other
person who may then hold the Option shall be entitled to exercise any Option
with respect to any Shares whatsoever, after termination of service, whether or
not after termination of service the Participant may receive payment from the
Company or Subsidiary for vacation pay, for services rendered prior to
termination, for services rendered for the day on which termination occurs, for
salary in lieu of notice, or for any other benefits.  In making such determination, the Board shall
give the Participant an opportunity to present to the Board evidence on his
behalf.  For the purpose of this
paragraph, termination of service shall be deemed to occur on the date when the
Company dispatches notice or advice to the Participant that his service is
terminated.


 


5.7                                 Limitations on Exercise.  Except with respect to California Options, the
Committee may specify a reasonable minimum number of Shares that may be
purchased on any exercise of an Option, provided that such minimum number will
not prevent Participant from exercising the Option for the full number of
Shares for which it is then exercisable.


 


5.8                                 Limitations on ISO.  The aggregate Fair Market Value (determined
as of the date of grant) of Shares with respect to which ISO are exercisable
for the first time by a Participant during any calendar year (under this Plan
or under any other incentive stock option plan of the Company, Parent or
Subsidiary of the Company) will not exceed $100,000.  If the Fair Market Value of Shares on the
date of grant with respect to which ISO are exercisable for the first time by a
Participant during any calendar year exceeds $100,000, then the Options for the
first $100,000 worth of Shares to become exercisable in such calendar year will
be ISO and the Options for the amount in excess of $100,000 that become
exercisable in that calendar year will be NQSOs.  In the event that the Code or the regulations
promulgated thereunder are amended after the Effective Date of this Plan to
provide for a different limit on the Fair Market Value of Shares permitted to
be subject to ISO, such different limit will be automatically incorporated
herein and will apply to any Options granted after the effective date of such
amendment.


 


5.9                                 Modification, Extension or Renewal.  The Committee may modify, extend or renew
outstanding Options and authorize the grant of new Options in substitution
therefor, provided that any such action may not, without the written consent of
a Participant, impair any of such Participant’s rights under any Option
previously granted.  Any outstanding ISO
that is modified, extended, renewed or otherwise altered will be treated in
accordance with Section 424(h) of the Code.


 


5.10                           No Disqualification.  Notwithstanding any other provision in this
Plan, no term of this Plan relating to ISO will be interpreted, amended or
altered, nor will any discretion or authority granted under this Plan be
exercised, so as to disqualify this Plan under Section 422 of the Code or,
without the consent of the Participant affected, to disqualify any ISO under Section 422
of the Code.


 


6.                                      RESTRICTED STOCK.  A Restricted Stock Award is an offer by the
Company to sell to an eligible person Shares that are subject to
restrictions.  To the extent required at
the time of grant by the California “Blue Sky” law, Restricted Stock Awards
shall be granted in accordance with Section 260.140.42 of Title 10 of the
California Code of Regulations.  The
Committee will determine to whom an offer will be made, the number of Shares
the person may purchase, the price to be paid (the “Purchase Price”),
the restrictions to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the following:


 


6.1                                 Form of Restricted Stock Award.  All purchases under a Restricted Stock Award
made pursuant to this Plan will be evidenced by an Award Agreement (“Restricted Stock Purchase Agreement”)
that will be in such form (which need not be the same for each Participant) as
the Committee will from time to time approve, and will comply with and be
subject to the terms and conditions of this Plan.  The offer of Restricted Stock will be
accepted by the Participant’s execution and delivery of the Restricted Stock
Purchase Agreement and full payment


 


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for the Shares to the
Company within thirty (30) days from the date the Restricted Stock Purchase
Agreement is delivered to the person.  If
such person does not execute and deliver the Restricted Stock Purchase
Agreement along with full payment for the Shares to the Company within thirty
(30) days, then the offer will terminate, unless otherwise determined by the
Committee.


 


6.2                                 Purchase Price.  The Purchase Price of Shares sold pursuant to
a Restricted Stock Award will be determined by the Committee on the date the
Restricted Stock Award is granted, except in the case of a sale to a Ten
Percent Stockholder, in which case the Purchase Price will be 100% of the Fair
Market Value.  Payment of the Purchase
Price may be made in accordance with Section 8 of this Plan.


 


6.3                                 Terms
of Restricted Stock Awards. 
Restricted Stock Awards shall be subject to such restrictions as the
Committee may impose subject to the applicable requirements of California
law.  These restrictions may be based
upon completion of a specified number of years of service with the Company or
upon completion of the performance goals as set out in advance in the
Participant’s individual Restricted Stock Purchase Agreement.  Restricted Stock Awards may vary from
Participant to Participant and between groups of Participants.  Prior to the grant of a Restricted Stock
Award, the Committee shall:  (a) determine
the nature, length and starting date of any Performance Period for the
Restricted Stock Award; (b) select from among the Performance Factors to
be used to measure performance goals, if any; and (c) determine the number
of Shares that may be awarded to the Participant.  Prior to the payment of any Restricted Stock
Award, the Committee shall determine the extent to which such Restricted Stock
Award has been earned.  Performance
Periods may overlap and Participants may participate simultaneously with
respect to Restricted Stock Awards that are subject to different Performance
Periods and having different performance goals and other criteria.


 


6.4                                 Termination During Performance Period.  If a Participant is Terminated during a
Performance Period for any reason, then such Participant will be entitled to
payment (whether in Shares, cash or otherwise) with respect to the Restricted
Stock Award only to the extent earned as of the date of Termination in
accordance with the Restricted Stock Purchase Agreement, unless the Committee
will determine otherwise.


 


7.                                      STOCK BONUSES.


 


7.1                                 Awards of Stock Bonuses.  A Stock Bonus is an award of Shares (which
may consist of Restricted Stock) for services rendered to the Company or any
Parent or Subsidiary of the Company.  A
Stock Bonus may be awarded for past services already rendered to the Company,
or any Parent or Subsidiary of the Company pursuant to an Award Agreement (the “Stock Bonus Agreement”)
that will be in such form (which need not be the same for each Participant) as
the Committee will from time to time approve, and will comply with and be
subject to the terms and conditions of this Plan.  A Stock Bonus may be awarded upon
satisfaction of such performance goals as are set out in advance in the
Participant’s individual Award Agreement (the “Performance
Stock Bonus Agreement”) that will be in such form (which need
not be the same for each Participant) as the Committee will from time to time
approve, and will comply with and be subject to the terms and conditions of
this Plan.  Stock Bonuses may vary from
Participant to Participant and between groups of Participants, and may be based
upon the achievement of the Company, Parent or Subsidiary and/or individual
performance factors or upon such other criteria as the Committee may determine
subject to the applicable requirements of California law.


 


7.2                                 Terms of Stock Bonuses.  The Committee will determine the number of
Shares to be awarded to the Participant. 
If the Stock Bonus is being earned upon the satisfaction of performance
goals pursuant to a Performance Stock Bonus Agreement, then the Committee will:
(a)  determine the nature, length and starting date of any Performance
Period for each Stock Bonus; (b) select from among the Performance Factors
to be used to measure the performance, if any; and (c) determine the
number of Shares that may be awarded to the Participant.  Prior to the payment of any Stock Bonus, the
Committee shall determine the extent to which such Stock Bonuses have been earned.  Performance Periods may overlap and
Participants may participate simultaneously with respect to Stock Bonuses that
are subject to different Performance Periods and different performance goals
and other criteria.  The number of Shares
may be fixed or may vary in accordance with such performance goals and criteria
as may be determined by the Committee. 
The Committee may adjust the performance goals applicable to the Stock
Bonuses to take into account changes in law and accounting or tax rules and
to make such adjustments as the Committee deems


 


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necessary or appropriate
to reflect the impact of extraordinary or unusual items, events or
circumstances to avoid windfalls or hardships.


 


7.3                                 Form of Payment.
 The earned portion of a Stock Bonus may
be paid currently or on a deferred basis with such interest or dividend
equivalent, if any, as the Committee may determine.  Payment may be made in the form of cash or
whole Shares or a combination thereof, either in a lump sum payment or in
installments, all as the Committee will determine.


 


8.                                      PAYMENT FOR SHARE PURCHASES.


 


8.1                                 Payment.  Payment for Shares purchased pursuant to this
Plan may be made in cash (by check) or, where expressly approved for the
Participant by the Committee and where permitted by law:


 


(a)                                  by
cancellation of indebtedness of the Company to the Participant;


 


(b)                                 by
surrender of shares that either:  (1) have
been owned by Participant for more than six (6) months and have been paid
for within the meaning of SEC Rule 144 (and, if such shares were purchased
from the Company by use of a promissory note, such note has been fully paid
with respect to such shares); or (2) were obtained by Participant in the
public market;


 


(c)                                  by
tender of a full recourse promissory note having such terms as may be approved
by the Committee and bearing interest at a rate sufficient to avoid imputation
of income under Sections 483 and 1274 of the Code; provided, however,
that Participants who are not employees or directors of the Company will not be
entitled to purchase Shares with a promissory note unless the note is
adequately secured by collateral other than the Shares;


 


(d)                                 by
waiver of compensation due or accrued to the Participant for services rendered;


 


(e)                                  with
respect only to purchases upon exercise of an Option, and provided that a
public market for the Company’s stock exists:


 


(1)                                  through
a “same day sale” commitment from the Participant and a broker-dealer that is a
member of the National Association of Securities Dealers (an “NASD Dealer”) whereby the
Participant irrevocably elects to exercise the Option and to sell a portion of
the Shares so purchased to pay for the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward the Exercise
Price directly to the Company; or


 


(2)                                  through
a “margin” commitment from the Participant and a NASD Dealer whereby the
Participant irrevocably elects to exercise the Option and to pledge the Shares
so purchased to the NASD Dealer in a margin account as security for a loan from
the NASD Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward the Exercise
Price directly to the Company; or


 


(f)                                    by
any combination of the foregoing.


 


8.2                                 Loan Guarantees.  The Committee may help the Participant pay
for Shares purchased under this Plan by authorizing a guarantee by the Company
of a third-party loan to the Participant.


 


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9.                                      AUTOMATIC
GRANTS TO OUTSIDE DIRECTORS.


 


9.1                                 Types
of Options and Shares.  Options
granted under this Plan and subject to this Section 9 shall be NQSOs.


 


9.2                                 Eligibility.  Options subject to this Section 9 shall
be granted only to Outside Directors.


 


9.3                                 Initial
Grant.  Each Outside Director who
first becomes a member of the Board on or after the Effective Date will
automatically be granted an Option for 50,000 Shares (an “Initial
Grant”) on the date such Outside Director first becomes a member
of the Board, unless such Outside Director received a grant of Options before
the Effective Date.  Each Outside
Director who became a member of the Board prior to the Effective Date and who
did not receive a prior Option grant will receive an Initial Grant immediately
following the Effective Date.


 


9.4                                 Succeeding
Grant.  Immediately following each
Annual Meeting of stockholders, each Outside Director will automatically be
granted an Option for 25,000 Shares (a “Succeeding Grant”),
provided the Outside Director is a member of the Board on such date and has
served continuously as a member of the Board for a period of at least one year
since the date of such Outside Director’s Initial Grant.  Notwithstanding anything in this Section 9.4
to the contrary, the Board may make discretionary supplemental grants to an
Outside Director who has served for less than one year from the date of such
Outside Director’s Initial Grant, provided that no Outside Director may
receive more than 75,000 Shares in any calendar year pursuant to this Section 9.


 


9.5                                 Vesting.  The date an Outside Director receives an
Initial Grant or a Succeeding Grant is referred to in this Plan as the “Start Date” for such Option.


 


(a)                                  Initial
Grants.  Each Initial Grant will vest
as to 2.778% of the Shares on each monthly anniversary of the Start Date, so
long as the Outside Director continuously remains a director or a consultant of
the Company.


 


(b)                                 Succeeding
Grants.  Each Succeeding Grant will
vest as to 2.778% of the Shares on each monthly anniversary of the Start Date,
so long as the Outside Director continuously remains a director or a consultant
of the Company.


 


Notwithstanding any
provision to the contrary, in the event of a Corporate Transaction described in
Section 18.1, the vesting of all options granted to Outside Directors
pursuant to this Section 9 will accelerate and such options will become
exercisable in full prior to the consummation of such event at such times and
on such conditions as the Committee determines, and must be exercised, if at
all, within three months of the consummation of said event.  Any options not exercised within such
three-month period shall expire.


 


9.6                                 Exercise Price.  The exercise price of an Option pursuant to
an Initial Grant and Succeeding Grant shall be the Fair Market Value of the
Shares, at the time that the Option is granted.


 


10.                               WITHHOLDING TAXES.


 


10.1                           Withholding Generally.  Whenever Shares are to be issued in
satisfaction of Awards granted under this Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. 
Whenever, under this Plan, payments in satisfaction of Awards are to be
made in cash, such payment will be net of an amount sufficient to satisfy
federal, state, and local withholding tax requirements.


 


10.2                           Stock Withholding.  When, under applicable tax laws, a
Participant incurs tax liability in connection with the exercise or vesting of
any Award that is subject to tax withholding and the Participant is obligated
to pay the Company the amount required to be withheld, the Committee may in its
sole discretion allow the Participant to satisfy the minimum withholding tax
obligation by electing to have the Company withhold from the Shares to be
issued that number of Shares having a Fair Market Value equal to the minimum
amount required to be


 


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withheld, determined on
the date that the amount of tax to be withheld is to be determined.  All elections by a Participant to have Shares
withheld for this purpose will be made in accordance with the requirements
established by the Committee and be in writing in a form acceptable to the
Committee.


 


11.                               TRANSFERABILITY.


 


11.1                           Except
as otherwise provided in this Section 11, Awards granted under this Plan,
and any interest therein, will not be transferable or assignable by
Participant, and may not be made subject to execution, attachment or similar
process, otherwise than by will or by the laws of descent and distribution or
as determined by the Committee and set forth in the Award Agreement with
respect to Awards that are not ISOs.


 


11.2                           All
Awards other than NQSO’s.  All Awards
other than NQSO’s shall be exercisable: (i) during the Participant’s
lifetime, only by (A) the Participant, or (B) the Participant’s
guardian or legal representative; and (ii) after Participant’s death, by
the legal representative of the Participant’s heirs or legatees.


 


11.3                           NQSOs.  Unless otherwise restricted by the Committee,
an NQSO shall be exercisable: (i) during the Participant’s lifetime only
by (A) the Participant, (B) the Participant’s guardian or legal
representative, (C) a Family Member of the Participant who has acquired
the NQSO by “permitted transfer;” and (ii) after Participant’s death, by
the legal representative of the Participant’s heirs or legatees.  “Permitted transfer” means, as authorized by
this Plan and the Committee in an NQSO, any transfer effected by the Participant
during the Participant’s lifetime of an interest in such NQSO but only such
transfers which are by gift or domestic relations order.  A permitted transfer does not include any
transfer for value and neither of the following are transfers for value:  (a) a transfer of under a domestic
relations order in settlement of marital property rights or (b) a transfer
to an entity in which more than fifty percent of the voting interests are owned
by Family Members or the Participant in exchange for an interest in that
entity.


 


12.                               PRIVILEGES OF STOCK OWNERSHIP;
RESTRICTIONS ON SHARES..


 


12.1                           Voting and Dividends.  No Participant will have any of the rights of
a stockholder with respect to any Shares until the Shares are issued to the
Participant.  After Shares are issued to
the Participant, the Participant will be a stockholder and have all the rights
of a stockholder with respect to such Shares, including the right to vote and
receive all dividends or other distributions made or paid with respect to such
Shares; provided, that if such Shares are Restricted Stock, then any
new, additional or different securities the Participant may become entitled to
receive with respect to such Shares by virtue of a stock dividend, stock split
or any other change in the corporate or capital structure of the Company will
be subject to the same restrictions as the Restricted Stock; provided, further,
that the Participant will have no right to retain such stock dividends or stock
distributions with respect to Shares that are repurchased at the Participant’s
Purchase Price or Exercise Price pursuant to Section 12.


 


12.2                           Financial Statements.  The Company will provide financial statements
to each Participant prior to such Participant’s purchase of Shares under this
Plan, and to each Participant annually during the period such Participant has
Awards outstanding; provided, however, the Company will not be
required to provide such financial statements to Participants whose services in
connection with the Company assure them access to equivalent information.  Additionally, to the extent required,
pursuant to the provisions of Section 260.140.46 of Title 10 of the
California Code of Regulations, the Company shall provide to each Participant
and to each individual who acquires Shares pursuant to the Plan, not less
frequently than annually during the period such Participant or purchaser has
one or more outstanding Awards, and, in the case of an individual who acquires
Shares pursuant to the Plan, during the period such individual owns such Shares,
copies of the Company’s annual financial statements.  The Company shall not be required to provide
such statements to key employees of the Company whose duties in connection with
the Company assure their access to equivalent information.


 


12.3                           Restrictions
on Shares.  At the discretion of the
Committee, the Company may reserve to itself and/or its assignee(s) in the
Award Agreement a right to repurchase (the “Repurchase Right”) a portion of or
all Unvested Shares held by a Participant following such Participant’s
Termination at any time within ninety (90) days after the later of Participant’s
Termination Date and the date Participant purchases Shares under this Plan, for
cash


 


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and/or cancellation of
purchase money indebtedness, at the Participant’s Exercise Price or Purchase
Price, as the case may be; provided, however, that the repurchase price of any
Repurchase Right reserved in an Award subject to California law at the time of
grant shall comply with the provisions of Section 260.140.41(k) of Title
10 of the California Code of Regulations to the extent required.


 


13.                               CERTIFICATES.  All certificates for Shares or other
securities delivered under this Plan will be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem necessary or
advisable, including restrictions under any applicable federal, state or
foreign securities law, or any rules, regulations and other requirements of the
SEC or any stock exchange or automated quotation system upon which the Shares
may be listed or quoted.


 


14.                               ESCROW; PLEDGE OF SHARES.  To enforce any restrictions on a Participant’s
Shares, the Committee may require the Participant to deposit all certificates
representing Shares, together with stock powers or other instruments of
transfer approved by the Committee, appropriately endorsed in blank, with the
Company or an agent designated by the Company to hold in escrow until such
restrictions have lapsed or terminated, and the Committee may cause a legend or
legends referencing such restrictions to be placed on the certificates.  Any Participant who is permitted to execute a
promissory note as partial or full consideration for the purchase of Shares
under this Plan will be required to pledge and deposit with the Company all or
part of the Shares so purchased as collateral to secure the payment of
Participant’s obligation to the Company under the promissory note; provided,
however, that the Committee may require or accept other or additional
forms of collateral to secure the payment of such obligation and, in any event,
the Company will have full recourse against the Participant under the
promissory note notwithstanding any pledge of the Participant’s Shares or other
collateral.  In connection with any
pledge of the Shares, Participant will be required to execute and deliver a
written pledge agreement in such form as the Committee will from time to time
approve.  The Shares purchased with the
promissory note may be released from the pledge on a pro rata basis as the
promissory note is paid.


 


15.                               EXCHANGE AND BUYOUT OF AWARDS.  The Committee may, at any time or from time
to time, authorize the Company, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and
cancellation of any or all outstanding Awards. 
The Committee may at any time buy from a Participant an Award previously
granted with payment in cash, Shares (including Restricted Stock) or other
consideration, based on such terms and conditions as the Committee and the
Participant may agree.


 


16.                               SECURITIES LAW AND OTHER REGULATORY COMPLIANCE.  An Award will not be effective unless such
Award is in compliance with all applicable federal and state securities laws, rules and
regulations of any governmental body, and the requirements of any stock
exchange or automated quotation system upon which the Shares may then be listed
or quoted, as they are in effect on the date of grant of the Award and also on
the date of exercise or other issuance. 
Notwithstanding any other provision in this Plan, the Company will have
no obligation to issue or deliver certificates for Shares under this Plan prior
to:  (a) obtaining any approvals
from governmental agencies that the Company determines are necessary or
advisable; and/or (b) completion of any registration or other
qualification of such Shares under any state or federal law or ruling of any
governmental body that the Company determines to be necessary or
advisable.  The Company will be under no
obligation to register the Shares with the SEC or to effect compliance with the
registration, qualification or listing requirements of any state securities
laws, stock exchange or automated quotation system, and the Company will have
no liability for any inability or failure to do so.


 


17.                               NO OBLIGATION TO EMPLOY.  Nothing in this Plan or any Award granted
under this Plan will confer or be deemed to confer on any Participant any right
to continue in the employ of, or to continue any other relationship with, the
Company or any Parent or Subsidiary of the Company or limit in any way the
right of the Company or any Parent or Subsidiary of the Company to terminate
Participant’s employment or other relationship at any time, with or without
cause.


 


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18.                               CORPORATE TRANSACTIONS.


 


18.1                           Assumption or Replacement of Awards by Successor.  Except for automatic grants to Outside
Directors pursuant to Section 9 hereof, in the event of (a) a
dissolution or liquidation of the Company, (b) a merger or consolidation
in which the Company is not the surviving corporation (other than a merger or
consolidation with a wholly-owned subsidiary, a reincorporation of the Company
in a different jurisdiction, or other transaction in which there is no
substantial change in the stockholders of the Company or their relative stock
holdings and the Awards granted under this Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (c) a merger in which the Company is the surviving
corporation but after which the stockholders of the Company immediately prior
to such merger (other than any stockholder that merges, or which owns or
controls another corporation that merges, with the Company in such merger) cease
to own their shares or other equity interest in the Company, (d) the sale
of substantially all of the assets of the Company, or (e) the acquisition,
sale, or transfer of more than 50% of the outstanding shares of the Company by
tender offer or similar transaction (each, a “Corporate Transaction”), (i) the
vesting of all outstanding Awards will accelerate as to an additional 25% of
the Shares that are unvested on the date of the Corporate Transaction and, (ii) thereafter,
unless otherwise set forth below, all unvested shares subject to outstanding
Awards will continue to vest in equal monthly installments over the remaining
original vesting term as set forth in the Award Agreement.  Upon a Corporate Transaction, all outstanding
Awards shall be assumed by the successor or acquiring corporation (if any),
which assumption will be binding on all Participants.  In the alternative, the successor or
acquiring corporation may substitute equivalent Awards or provide substantially
similar consideration to Participants as was provided to shareholders (after
taking into account the existing provisions of the Awards).  The successor corporation may also issue, in
place of outstanding unvested Shares of the Company held by the Participants,
substantially similar shares or other property subject to repurchase
restrictions no less favorable to the Participant.  In the event such successor corporation (if
any) refuses to assume or substitute Awards, as provided above, pursuant to a
Corporate Transaction described in this Subsection 18.1, such Awards will
expire on such Corporate Transaction at such time and on such conditions as the
Committee will determine. 
Notwithstanding anything in this Plan to the contrary, the Committee
may, in its sole discretion, provide that the vesting of any or all Awards
granted pursuant to this Plan will accelerate upon a Corporate Transaction
described in this Section 18.  If
the Committee exercises such discretion with respect to Options, such Options
will become exercisable in full prior to the consummation of such event at such
time and on such conditions as the Committee determines, and if such Options
are not exercised prior to the consummation of the Corporate Transaction, they
shall terminate at such time as determined by the Committee.


 


18.2                           Other Treatment of Awards.  Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 18, in the
event of the occurrence of any Corporate Transaction described in Section 18.1,
any outstanding Awards will be treated as provided in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation, or sale of assets.


 


18.3                           Assumption of Awards by the Company.  The Company, from time to time, also may
substitute or assume outstanding awards granted by another company, whether in
connection with an acquisition of such other company or otherwise, by either; (a) granting
an Award under this Plan in substitution of such other company’s award; or (b) assuming
such award as if it had been granted under this Plan if the terms of such
assumed award could be applied to an Award granted under this Plan.  Such substitution or assumption will be
permissible if the holder of the substituted or assumed award would have been
eligible to be granted an Award under this Plan if the other company had
applied the rules of this Plan to such grant.  In the event the Company assumes an award
granted by another company, the terms and conditions of such award will remain
unchanged (except that the exercise price and the number and nature of
Shares issuable upon exercise of any such option will be adjusted appropriately
pursuant to Section 424(a) of the Code).  In the event the Company elects to grant a
new Option rather than assuming an existing option, such new Option may be
granted with a similarly adjusted Exercise Price.


 


19.                               ADOPTION AND STOCKHOLDER APPROVAL.  This Plan will become effective upon the
first date on which grants are made of Shares reserved under the Plan (the “Effective Date”).  This Plan shall be approved by the
stockholders of the Company (excluding Shares issued pursuant to this Plan),
consistent with applicable laws, within twelve (12) months before or after the
date this Plan is adopted by the Board. 
Upon the Effective Date, the Committee may grant Awards pursuant to this
Plan; provided, however, that: (a) no Option may be
exercised prior to initial stockholder approval of this Plan; (b) no
Option granted pursuant to an increase in the number of Shares subject to this
Plan approved by the Board will be exercised prior to the time such increase
has


 


10





















 


been approved by the
stockholders of the Company; (c) in the event that initial stockholder
approval is not obtained within the time period provided herein, all Awards
granted hereunder shall be cancelled, any Shares issued pursuant to any Awards
shall be cancelled and any purchase of Shares issued hereunder shall be
rescinded; and (d) in the event that stockholder approval of such increase
is not obtained within the time period provided herein, all Awards granted
pursuant to such increase will be cancelled, any Shares issued pursuant to any
Award granted pursuant to such increase will be cancelled, and any purchase of
Shares pursuant to such increase will be rescinded.


 


20.                               TERM OF PLAN/GOVERNING
LAW.  Unless earlier terminated
as provided herein, this Plan will terminate ten (10) years from the date
this Plan is adopted by the Board or, if earlier, the date of stockholder
approval.  This Plan and all agreements
thereunder shall be governed by and construed in accordance with the laws of
the State of California.


 


21.                               AMENDMENT OR TERMINATION OF PLAN.  The Board may at any time terminate or amend
this Plan in any respect, including without limitation amendment of any form of
Award Agreement or instrument to be executed pursuant to this Plan; provided,
however, that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that requires such
stockholder approval.


 


22.                               NONEXCLUSIVITY OF THE PLAN.  Neither the adoption of this Plan by the
Board, the submission of this Plan to the stockholders of the Company for
approval, nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and bonuses otherwise than under this Plan, and such
arrangements may be either generally applicable or applicable only in specific
cases.


 


23.                               DEFINITIONS.  As used in this Plan, the following terms
will have the following meanings:


 


“Award” means any award under this
Plan, including any Option, Restricted Stock or Stock Bonus.


 


“Award Agreement” means, with
respect to each Award, the signed written agreement between the Company and the
Participant setting forth the terms and conditions of the Award.


 


“Board” means the Board of Directors
of the Company.


 


“Cause” means the commission of an
act of theft, embezzlement, fraud, dishonesty or a breach of fiduciary duty to
the Company or a Parent or Subsidiary of the Company.


 


“Code” means the Internal Revenue
Code of 1986, as amended.


 


“Committee” means the Compensation
Committee of the Board.


 


“Company” means NIKU Corporation or
any successor corporation.


 


“Disability” means a disability,
whether temporary or permanent, partial or total, as determined by the
Committee.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Exercise Price” means the price
at which a holder of an Option may purchase the Shares issuable upon exercise
of the Option.


 


“Fair Market Value” means
the value of a share of the Company’s Common Stock determined as follows:


 


(a)                                  if
such Common Stock is then quoted on the Nasdaq National Market, its closing
price on the Nasdaq National Market as reported in The Wall Street Journal;


 


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(b)                                 if
such Common Stock is publicly traded and is then listed on a national
securities exchange, its closing price on the principal national securities
exchange on which the Common Stock is listed or admitted to trading as reported
in The Wall Street Journal;


 


(c)                                  if
such Common Stock is publicly traded but is not quoted on the Nasdaq National
Market nor listed or admitted to trading on a national securities exchange, the
average of the closing bid and asked prices as reported in The Wall Street
Journal;


 


(d)                                 in
the case of an Award made on the Effective Date, the price per share at which
shares of the Company’s Common Stock are initially offered for sale to the
public by the Company’s underwriters in the initial public offering of the
Company’s Common Stock pursuant to a registration statement filed with the SEC
under the Securities Act;  or


 


(e)                                  if
none of the foregoing is applicable, by the Committee in good faith.


 


“Family Member” includes any of the
following:


 


(a)                                  child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law of the Participant, including
any such person with such relationship to the Participant by adoption;


 


(b)                                 any
person (other than a tenant or employee) sharing the Participant’s household;


 


(c)                                  a
trust in which the persons in (a) and (b) have more than fifty
percent of the beneficial interest;


 


(d)                                 a
foundation in which the persons in (a) and (b) or the Participant
control the management of assets; or


 


(e)                                  any
other entity in which the persons in (a) and (b) or the Participant
own more than fifty percent of the voting interest.


 


“Insider” means an officer or
director of the Company or any other person whose transactions in the Company’s
Common Stock are subject to Section 16 of the Exchange Act.


 


“Option” means an award of an option
to purchase Shares pursuant to Section 5.


 


“Outside Director” means a member of
the Board who is not an employee of the Company or any Parent, Subsidiary or
Affiliate of the Company.


 


“Parent” means any corporation (other
than the Company) in an unbroken chain of corporations ending with the Company
if each of such corporations other than the Company owns stock possessing 50%
or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.


 


“Participant” means a person who
receives an Award under this Plan.


 


“Performance Factors” means the
factors selected by the Committee from among the following measures to
determine whether the performance goals established by the Committee and
applicable to Awards have been satisfied:


 


(a)                                  Net
revenue and/or net revenue growth;


 


(b)                                 Earnings
before income taxes and amortization and/or earnings before income taxes and
amortization growth;


 


(c)                                  Operating
income and/or operating income growth;


 


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(d)                                 Net
income and/or net income growth;


 


(e)                                  Earnings
per share and/or earnings per share growth;


 


(f)                                    Total
stockholder return and/or total stockholder return growth;


 


(g)                                 Return
on equity;


 


(h)                                 Operating
cash flow return on income;


 


(i)                                     Adjusted
operating cash flow return on income;


 


(j)                                     Economic
value added; and


 


(k)                                  Individual
confidential business objectives.


 


“Performance Period” means the period
of service determined by the Committee, not to exceed five (5) years,
during which years of service or performance is to be measured for Restricted
Stock Awards or Stock Bonuses.


 


“Plan” means this NIKU Corporation
2000 Equity Incentive Plan, as amended from time to time.


 


“Restricted Stock Award”
means an award of Shares pursuant to Section 6.


 


“SEC” means the Securities and
Exchange Commission.


 


“Securities Act” means the
Securities Act of 1933, as amended.


 


“Shares” means shares of the Company’s
Common Stock reserved for issuance under this Plan, as adjusted pursuant to
Sections 2 and 18, and any successor security.


 


“Stock Bonus” means an award of
Shares, or cash in lieu of Shares, pursuant to Section 7.


 


“Subsidiary” means any corporation
(other than the Company) in an unbroken chain of corporations beginning with
the Company if each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.


 


“Termination” or “Terminated” means, for purposes of
this Plan with respect to a Participant, that the Participant has for any
reason ceased to provide services as an employee, officer, director, consultant
or advisor to the Company or a Parent or Subsidiary of the Company.  An employee will not be deemed to have ceased
to provide services in the case of (i) sick leave, (ii) military
leave, or (iii) any other leave of absence approved by the Committee,
provided, that such leave is for a period of not more than 90 days, unless
reemployment upon the expiration of such leave is guaranteed by contract or
statute or unless provided otherwise pursuant to formal policy adopted from
time to time by the Company and issued and promulgated to employees in writing.  In the case of any employee on an approved
leave of absence, the Committee may make such provisions respecting suspension
of vesting of the Award while on leave from the employ of the Company or a
Subsidiary as it may deem appropriate, except that in no event may an Option be
exercised after the expiration of the term set forth in the Option
agreement.  The Committee will have sole
discretion to determine whether a Participant has ceased to provide services
and the effective date on which the Participant ceased to provide services (the
“Termination Date”).


 


“Unvested Shares” means “Unvested
Shares” as defined in the Award Agreement.


 


“Vested Shares” means “Vested Shares”
as defined in the Award Agreement.


 


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