Exhibit (d)(5)
NIKU CORPORATION
2000 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
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This Stock Option Agreement (this "Agreement") is made and entered
into as of the Date of Grant (the "Date of Grant") set forth in the attached
Notice of Grant of Stock Option (the "Notice"), by and between NIKU
Corporation, a Delaware corporation (the "Company"), and the Optionee named in
the Notice ("Optionee"). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Company's 2000 Equity Incentive Plan (the
"Plan").
1. Grant of Option. The Company hereby grants to Optionee an option
(this "Option") to purchase up to the total number of shares of Common Stock
of the Company set forth in the Notice as Total Option Shares (collectively,
the "Shares") at the Exercise Price Per Share set forth the Notice (the
"Exercise Price"), subject to all of the terms and conditions of the Notice,
this Agreement and the Plan. If designated as an Incentive Stock Option in the
Notice, this Option is intended to qualify as an "incentive stock option"
("ISO") within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), to the extent permitted under Code Section 422.
2. Vesting; Exercise Period.
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2.1 Vesting of Shares. This Option shall be exercisable as it
vests. Subject to the terms and conditions of the Notice, the Plan and this
Agreement, this Option shall vest and become exercisable as to portions of the
Shares as set forth in the Notice.
2.2 Vesting of Options. Shares that are vested pursuant to the
schedule set forth in Section 2.1 hereof are "Vested Shares." Shares that are
not vested pursuant to the schedule set forth in Section 2.1 hereof are
"Unvested Shares."
2.3 Expiration. This Option shall expire on the Expiration Date
set forth in the Notice and must be exercised, if at all, on or before the
earlier of the Expiration Date or the date on which this Option is earlier
terminated in accordance with the provisions of Section 3 hereof.
3. Termination.
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3.1 Termination for Any Reason Except Death, Disability or
Cause. If Optionee is Terminated for any reason except Optionee's death,
Disability or Cause, then this Option, to the extent (and only to the extent)
that it is vested in accordance with the schedule set forth in Section 2.1
hereof on the Termination Date, may be exercised by Optionee no later than
three (3) months after the Termination Date, but in any event no later than
the Expiration Date.
3.2 Termination Because of Death or Disability. If Optionee is
Terminated because of death or Disability of Optionee (or the Optionee dies
within three (3) months after Termination other than for Cause or because of
Disability), then this Option, to the extent that it is vested in accordance
with the schedule set forth in Section 2.1 hereof on the Termination Date, may
be exercised by Optionee (or Optionee's legal representative or authorized
assignee) no later than twelve (12) months after the Termination Date, but in
any event no later than the Expiration Date. Any exercise after three months
after the Termination Date when the Termination is for any reason other than
Optionee's death or disability, within the meaning of Code Section 22(e)(3),
shall be deemed to be the exercise of a nonqualified stock option.
3.3 Termination for Cause. If Optionee is Terminated for Cause,
this Option will expire on the Optionee's date of Termination.
3.4 No Obligation to Employ. Nothing in the Plan or this
Agreement shall confer on Optionee any right to continue in the employ of, or
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 Optionee's employment or other
relationship at any time, with or without Cause.
4. Manner of Exercise.
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4.1 Stock Option Exercise Agreement. To exercise this Option,
Optionee (or in the case of exercise after Optionee's death, Optionee's
executor, administrator, heir or legatee, as the case may be) must deliver to
the Company an executed stock option exercise agreement in such other form as
may be approved by the Company from time to time (the "Exercise Agreement"),
which shall set forth, among other things, Optionee's election to exercise
this Option, the number of shares being purchased, any restrictions imposed on
the Shares and any representations, warranties and agreements regarding
Optionee's investment intent and access to information as may be required by
the Company to comply with applicable securities laws. If someone other than
Optionee exercises this Option, then such person must submit documentation
reasonably acceptable to the Company that such person has the right to
exercise this Option.
4.2 Limitations on Exercise. This Option may not be exercised
unless such exercise is in compliance with all applicable federal and state
securities laws, as they are in effect on the date of exercise.
4.3 Payment. The Exercise Agreement shall be accompanied by
full payment of the Exercise Price for the Shares being purchased in cash (by
check), or where permitted by law:
(a) by cancellation of indebtedness of the Company to the Optionee;
(b) by surrender of shares of the Company's Common Stock that either:
(1) have been owned by Optionee 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 Optionee in the open public market; and (3) are
clear of all liens, claims, encumbrances or security interests;
(c) by waiver of compensation due or accrued to Optionee for services
rendered;
(d) provided that a public market for the Company's stock exists: (1)
through a "same day sale" commitment from Optionee and a
broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD Dealer") whereby Optionee irrevocably
elects to exercise this 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 Optionee and an NASD Dealer whereby
Optionee irrevocably elects to exercise this 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
(e) by any combination of the foregoing.
4.4 Tax Withholding. Prior to the issuance of the Shares upon
exercise of this Option, Optionee must pay or provide for any applicable
federal or state withholding obligations of the Company. If the Committee
permits, Optionee may provide for payment of withholding taxes upon exercise
of this Option by requesting that the Company retain Shares with a Fair Market
Value equal to the minimum amount of taxes required to be withheld. In such
case, the Company shall issue the net number of Shares to the Optionee by
deducting the Shares retained from the Shares issuable upon exercise.
4.5 Issuance of Shares. Provided that the Exercise Agreement
and payment are in form and substance satisfactory to counsel for the Company,
the Company shall issue the Shares registered in the name of Optionee,
Optionee's authorized assignee, or Optionee's legal representative, and shall
deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. Notice of Disqualifying Disposition of ISO Shares. To the extent
this Option is an ISO, if Optionee sells or otherwise disposes of any of the
Shares acquired pursuant to the ISO on or before the later of (a) the date two
(2) years after the Date of Grant, and (b) the date one (1) year after
transfer of such Shares to Optionee upon exercise of this Option, then
Optionee shall immediately notify the Company in writing of such disposition.
6. Compliance with Laws and Regulations. The exercise of this Option
and the issuance and transfer of Shares shall be subject to compliance by the
Company and Optionee with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on
which the Company's Common Stock may be listed at the time of such issuance or
transfer. Optionee understands that the Company is under no obligation to
register or qualify the Shares with the SEC, any state securities commission
or any stock exchange to effect such compliance.
7. Nontransferability of Option. This Option may not be transferred
in any manner other than under the terms and conditions of the Plan or by will
or by the laws of descent and distribution and may be exercised during the
lifetime of Optionee only by Optionee. The terms of this Option shall be
binding upon the executors, administrators, successors and assigns of
Optionee.
8. Tax Consequences. Set forth below is a brief summary as of the
date the Board adopted the Plan of some of the federal tax consequences of
exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO
CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
8.1 Exercise of Incentive Stock Option. To the extent this
Option qualifies as an ISO, there will be no regular federal income tax
liability upon the exercise of this Option, although the excess, if any, of
the fair market value of the Shares on the date of exercise over the Exercise
Price will be treated as a tax preference item for federal income tax purposes
and may subject the Optionee to the alternative minimum tax in the year of
exercise.
8.2 Exercise of Nonqualified Stock Option. To the extent this
Option does not qualify as an ISO, there may be a regular federal income tax
liability upon the exercise of this Option. Optionee will be treated as having
received compensation income (taxable at ordinary income tax rates) equal to
the excess, if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price. The Company may be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise.
8.3 Disposition of Shares. The following tax consequences may
apply upon disposition of the Shares.
a. Incentive Stock Options. If the Shares are held for
twelve (12) months or more after the date of the transfer of the Shares
pursuant to the exercise of an ISO and are disposed of two (2) years or more
after the Date of Grant, any gain realized on disposition of the Shares will
be treated as capital gain for federal income tax purposes. If Shares
purchased under an ISO are disposed of within the applicable one (1) year or
two (2) year period, any gain realized on such disposition will be treated as
compensation income (taxable at ordinary income rates) to the extent of the
excess, if any, of the fair market value of the Shares on the date of exercise
over the Exercise Price.
b. Nonqualified Stock Options. If the Shares are held for
more than twelve (12) months after the date of the transfer of the Shares
pursuant to the exercise of an NQSO, any gain realized on disposition of the
Shares will be treated as long-term capital gain.
c. Withholding. The Company may be required to withhold
from Optionee's compensation or collect from the Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income.
9. Privileges of Stock Ownership. Optionee shall not have any of the
rights of a stockholder with respect to any Shares until the Shares are issued
to Optionee.
10. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or the Company to the Committee for
review. The resolution of such a dispute by the Committee shall be final and
binding on the Company and Optionee.
11. Entire Agreement. The Plan is incorporated herein by reference.
This Agreement and the Plan and the Exercise Agreement constitute the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior understandings and agreements with
respect to such subject matter.
12. Notices. Any notice required to be given or delivered to the
Company under the terms of this Agreement shall be in writing and addressed to
the Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Optionee shall be in writing and
addressed to Optionee at the address indicated the Notice or to such other
address as such party may designate in writing from time to time to the
Company. All notices shall be deemed to have been given or delivered upon:
personal delivery; three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested); one (1) business day
after deposit with any return receipt express courier (prepaid); or one (1)
business day after transmission by facsimile.
13. Successors and Assigns. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding
upon Optionee and Optionee's heirs, executors, administrators, legal
representatives, successors and assigns.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California, without
regard to that body of law pertaining to choice of law or conflict of law.
15. Acceptance. Optionee hereby acknowledges receipt of a copy of
the Plan and this Agreement. Optionee has read and understands the terms and
provisions thereof, and accepts this Option subject to all the terms and
conditions of the Plan and this Agreement. Optionee acknowledges that there
may be adverse tax consequences upon exercise of this Option or disposition of
the Shares and that the Company has advised Optionee to consult a tax advisor
prior to such exercise or disposition.
Exhibit A
NIKU CORPORATION
2000 EQUITY INCENTIVE PLAN (the "Plan")
Stock Option Exercise Agreement
I hereby elect to purchase the number of shares of Common Stock of NIKU
Corporation (the "Company") as set forth below:
Optionee___________________________ Number of Shares Purchased:_____________
Social Security Number:____________ Purchase Price per Share:_______________
Address:___________________________ Aggregate Purchase Price:_______________
Date of Option Agreement:_______________
Type of Option: [ ] Incentive Stock Option Exact Name of Title to Shares:
[ ] Nonqualified Stock Option _______________________________
1. Delivery of Purchase Price. Optionee hereby delivers to the Company the
Aggregate Purchase Price, to the extent permitted in the Option Agreement (the
"Option Agreement") as follows (check as applicable and complete):
[ ] in cash (by check) in the amount of $_____________________,
receipt of which is acknowledged by the Company;
[ ] by cancellation of indebtedness of the Company to Optionee in
the amount of $___________________________________;
[ ] by delivery of ______________________________ fully-paid,
nonassessable and vested shares of the Common Stock of the
Company owned by Optionee for at least six (6) months prior to
the date hereof (and which have been paid for within the
meaning of SEC Rule 144), or obtained by Optionee in the open
public market, and owned free and clear of all liens, claims,
encumbrances or security interests, valued at the current Fair
Market Value of $____________________ per share;
[ ] by the waiver hereby of compensation due or accrued to Optionee
for services rendered in the amount of $______________________ ;
[ ] through a "same-day-sale" commitment, delivered herewith, from
Optionee and the NASD Dealer named therein, in the amount of
$_______________________________; or
[ ] through a "margin" commitment, delivered herewith from Optionee
and the NASD Dealer named therein, in the amount of
$_________________________________________.
2. Market Standoff Agreement. Optionee, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, agrees not
to sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by Optionee during the period requested by the
managing underwriter following the effective date of a registration statement
of the Company filed under the Securities Act, provided that all officers and
directors of the Company are required to enter into similar agreements. Such
agreement shall be in writing in a form satisfactory to the Company and such
underwriter. The Company may impose stop-transfer instructions with respect to
the shares (or other securities) subject to the foregoing restriction until
the end of such period.
3. Tax Consequences. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX
CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF THE SHARES.
OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S)
OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE
SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
4. Entire Agreement. The Plan and Option Agreement are incorporated herein by
reference. This Exercise Agreement, the Plan and the Option Agreement
constitute the entire agreement and understanding of the parties and supersede
in their entirety all prior understandings and agreements of the Company and
Optionee with respect to the subject matter hereof, and are governed by
California law except for that body of law pertaining to choice of law or
conflict of law.
Date:______________________ _________________________
Signature of Optionee
Spousal Consent
I acknowledge that I have read the foregoing Stock Option Exercise
Agreement (the "Agreement") and that I know its contents. I hereby consent to
and approve all of the provisions of the Agreement, and agree that the shares
of the Common Stock of NIKU Corporation purchased thereunder (the "Shares")
and any interest I may have in such Shares are subject to all the provisions
of the Agreement. I will take no action at any time to hinder operation of the
Agreement on these Shares or any interest I may have in or to them.
__________________________________ Date:__________________
Signature of Optionee's Spouse
__________________________________
Spouse's Name - Typed or Printed
___________________________________
Optionee's Name - Typed or Printed
