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EXHIBIT 10.21
CYBERCASH, INC.
1995 STOCK OPTION PLAN
PERFORMANCE STOCK OPTION AGREEMENT
To XXXXXX X. XXXXXX, Optionee:
CYBERCASH, INC., (the "Company"), has granted you an option to
purchase shares of the common stock of the Company ("Common Stock") under the
CyberCash, Inc. 1995 Stock Option Plan (the "Plan"). This option is not intended
to qualify as an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
The details of your option are as follows:
1. Total Number of Shares Subject to this Option. The
total number of shares of Common Stock subject to this option is 120,000 Shares.
2. Performance Vesting.
(a) Standard Vesting. Unless vesting of this
Option is accelerated pursuant to paragraph 2(b), one hundred percent of the
shares will vest on the date which is seven years less one day from the date you
were granted this option (February 1, 2000).
(b) Accelerated Vesting. The shares covered by
this option will be divided into three installments of 40,000 shares each, which
will vest as follows:
(i) The "First Installment" of 40,000 shares will
vest as of June 30, 2000 if the First Installment Condition is met. It will vest
as of December 31, 2000 if the First Installment Condition is not met, but the
Second Installment Condition is met.
(ii) The "Second Installment" of 40,000 shares will
vest as of December 31, 2000 if the Second Installment Condition is met.
(iii) The "Third Installment" of 40,000 shares will
vest as of June 30, 2001 if the Third Installment Condition is met.
(c) Vesting Conditions. The conditions for accelerated
vesting are as follows:
(i) The "First Installment Condition" shall be that
(1) the Company's revenue for the six months ending June 30, 2000 is at least
$12,900,000 and (2) the Company's operating cash flow for the same period is not
less than minus $5,100,000.
(ii) The "Second Installment Condition" shall be
that (1) the Company's revenue for the twelve months ending December 31, 2000 is
at least $28,500,000 and (2) the Company's operating cash flow for the same
period is not less than minus $6,900,000.
(iii) The "Third Installment Condition" shall be that
(1) the Company's revenue for the six months ending June 30, 2001 is at least
$20,600,000 and (2) the Company's operating cash flow for the same period is not
less than zero.
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3. Exercise Prices, Manner of Exercise, and Method of
Payment.
(a) Initial Exercise Price. The initial exercise price per
share (the "First Exercise Price") of all of the shares covered by this option
shall be $8.6875 (the last reported sale price on the Nasdaq Stock Market on the
last full trading day immediately preceding the date hereof.) The exercise price
per share shall be increased as provided below (but shall not be reduced below
the First Exercise Price).
(b) Increases in Exercise Price. The per share exercise
price for all of the unvested shares covered by this option shall be increased
as of the close of business on July 1, 2000 to the last reported sale price on
the Nasdaq Stock Market on the last full trading day immediately preceding that
date (the "Second Exercise Price"). The per share exercise price for the Third
Installment shall be increased as of the close of business on January 1, 2001 to
the last reported sale price on the Nasdaq Stock Market on the last full trading
day immediately preceding that date (the "Third Exercise Price"). The per share
exercise price for all unvested shares in the First Installment and the Second
Installment shall be increased as of the close of business on January 1, 2001 to
$100 per share. If the Third Installment Condition is not met, the per share
exercise price for the Third Installment shall be increased to $100 per share.
(c) Manner of Exercise. You may exercise the vested
portion of your option, in whole or in part, by delivering the Notice of
Exercise, attached to this option as an exhibit, together with the exercise
price to the Secretary of the Company, or another person designated by the
Company, during regular business hours, together with any additional documents
required in the Notice of Exercise. Payment of the exercise price per share is
due in full upon exercise of all or any part of this option. You may make
payment of the exercise price under one or a combination of the following
alternatives:
(i) Payment of the exercise price per share in cash
or by check at the time of exercise;
(ii) If at the time of exercise the Company's Common
Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment with shares of the Company's Common Stock you already own. The Common
Stock (A) will be valued at its fair market value on the date of exercise, (B)
if originally acquired from the Company, it must have been held for the period
required to avoid a charge to the Company's reported earnings, and (C) it must
be owned free and clear of any liens, claims, encumbrances or security
interests;
(iii) This option may also be exercised as part of a
program developed under Regulation T as promulgated by the Federal Reserve Board
which results in the receipt of cash (or a check) by the Company before Common
Stock is issued; or
(iv) Payment by a combination of the methods of
payment listed in subparagraph 3(c)(i) through 3(c)(iii) above.
(d) Xxxxxx of Exercise for CyberCash India Optionees.
Notwithstanding paragraph 3(c) above, optionees employed by or providing
services to CyberCash India ("CCIPL Optionees") may exercise the vested portion
of their option, in whole or part, only in the manner described on the
attachment labeled "Manner of Exercise for CyberCash India Optionees".
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(e) Representations of Optionee. By exercising
this option you agree that:
(i) the Company may require you to pay to the
Company any tax withholding obligation of the Company arising from (A) your
exercise of this option; (B) the lapse of any substantial risk of forfeiture to
which the shares are subject at the time of exercise; or (C) the disposition of
the shares of Common Stock you acquired upon the exercise of this option; and
(ii) you will notify the Company in writing within
fifteen days after the date on which you dispose of any of the shares of the
Common Stock issued to you upon your exercise of this option if the disposition
of shares occurs within two years after the date on which you were granted this
option or within one year of the date on which you exercised this option.
4. Whole Shares. You may exercise this option only for whole
shares and the Company shall be under no obligation to issue any fractional
shares of Common Stock to you.
5. Securities Law Compliance. Notwithstanding anything to the
contrary contained in this option, this option may not be exercised unless the
shares issuable upon exercise of this option are then registered under the
Securities Act of 1933, as amended (the "Act") or, if the shares are not
registered at that time, the Company has determined that the exercise and
issuance would be exempt from the registration requirements of the Act.
6. Term of Option.
(a) The term of this option begins on the date you were
granted this option and, unless it ends sooner for the reason described below,
terminates on February 1, 2010, the "Expiration Date" (which date shall be no
more than ten years from the date this option was granted). You may not, under
any circumstances, exercise this option after the Expiration Date. By delivering
written notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall thereafter be
entitled to exercise this option.
(b) This option will also terminate prior to the end of
its term if your service as an employee or an advisor or consultant with the
Company and all Affiliates is terminated for any reason or for no reason. Your
option will then terminate three months after the date on which you are no
longer providing services to the Company or any Affiliate unless one of the
following circumstances exists:
(i) Your termination of service is due to
your disability. This option will then terminate on the
earlier of the Expiration Date or twelve months following the
termination of your service.
(ii) Your termination of service is due to
your death. This option will then terminate on the earlier of
the Expiration Date or twelve months after your death.
(c) If during any part of the three-month period you may
not exercise your option solely because of the condition described in paragraph
5 above, then your option will not terminate until the earlier of the Expiration
Date or until this option shall become exercisable for a period of three months
after the termination of your service.
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(d) If your exercise of the option within three months
after termination of your service with the Company and all Affiliates will
result in liability under Section 16(b) of the Exchange Act, then your option
will terminate on the earlier of (i) the Expiration Date, (ii) the tenth day
after the last date on which your exercise would result in such liability or
(iii) six months and ten days after the termination of your service with the
Company and all Affiliates.
(e) Following the termination of your service, you may
exercise options for only the shares which are vested on the date of your
termination of service.
7. Option Not Transferable. This option may not be transferred,
except by will or by the laws of descent and distribution, and may be exercised
during your life only by you.
8. Option Not an Employment Contract. This option is not an
employment contract and nothing in this option creates in any way whatsoever any
obligation on your part to continue in the employ of the Company, or of the
Company to continue your employment with the Company.
9. Notices. Any notices provided for in this option or the Plan
will be given in writing and will be considered to have been given upon receipt
or, in the case of notices delivered by the Company to you, five days: (i) after
deposit in the United States mail, postage prepaid, addressed to you at the
address specified below or at such other address as you later designate in
writing to the Company, or (ii) for CCIPL Optionees only, after a notice is sent
to you by courier delivery to the address specified below or at such other
address as you later designate in writing to the Company, and not by the method
designated in (i).
10. Governing Plan Document. This option is subject to all the
provisions of the Plan, which is attached as an exhibit to this option. All
provisions of the Plan are hereby made a part of this option. This option is
further subject to all interpretations, amendments, rules and regulations which
may from time to time be set forth and adopted under the Plan. In the event of
any conflict between the provisions of this option and those of the Plan, the
provisions of the Plan shall control.
Dated February 1, 2000
