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EXHIBIT 10.4
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is entered into by and between
CYBERSOURCE CORPORATION, a California corporation (the "Company"), and XXXX
XXXXXXX, a independent contractor of the Company (the "Option Holder").
RECITALS
WHEREAS, the Company has engaged Option Holder's services as an
independent contractor of the Company; and
WHEREAS, the Board of Directors of the Company has determined that it
would be to the advantage and interest of the Company and its shareholders to
grant to the Option Holder the option rights provided for herein as an
inducement to render services to the Company as an independent contractor, has
approved of the granting to the Option Holder of the option rights evidenced by
this Agreement, has advised the Company thereof and instructed the undersigned
officer to issue the option rights as provided for herein:
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Grant of Option Rights. Subject to the terms and conditions
contained herein, the Company hereby grants to the Option Holder the option
rights specified herein:
1.1 The number and class of shares of the Company's currently
authorized but unissued stock subject to the option rights granted hereunder are
an aggregate of 500,000 shares of the Company's common stock.
1.2 The option exercise price is $.01 per share.
1.3 The Option Holder has option rights hereunder to purchase a
total of 500,000 shares of the Company's common stock which shall become
exercisable during the time periods as set forth in this Section 1.3. On and
after February 15, 1995, this option may be exercised by the Optionee for the
purchase of one-quarter of the shares covered by this option (125,000 shares),
or any portion thereof. On or after the last day of each full month following
February 15, 1995, this option may be exercised by the Optionee for the purchase
of an additional one eighteenth (1/18) of the shares covered by this option
(27,778 shares), or any portion thereof. Once a portion of this option becomes
exercisable it shall remain exercisable until the Expiration Date, or until it
terminates pursuant to the terms of Section 4 hereof, whichever is first to
occur.
(d) Notwithstanding the provisions of subparagraph 1(c) above, (i)
the minimum number of shares which may be
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purchased upon any partial exercise of the option rights granted hereunder is
100 shares; and (ii) this Option shall expire on the Expiration Date set forth
below, and must be exercised, if at all on or before the Expiration Date.
Notwithstanding the foregoing, the Board of Directors of the Company in
its sole discretion may, upon written notice to the Option Holder, accelerate
the earliest date on which any of the option rights granted hereunder are
exercisable.
The granting of option rights hereunder shall impose no obligation on the
Company to continue to engage the services of the Option Holder, and shall not
lessen or affect the right of the Company to terminate such engagement or to
change the duties, compensation, or other terms thereof. The parties agree that
either of them may terminate the arrangement under which Option Holder is
performing services at any time for any reason or no reason.
2. Fractional Shares; Compliance with Laws. In no event shall the
Company be required to issue fractional shares upon the exercise of any option
rights granted hereunder.
No option rights granted hereunder may be exercised, and the Company shall
not be required to issue or deliver any certificate or certificates for shares
purchased upon the exercise of option rights granted hereunder until there has
been compliance with all then applicable requirements of law, including such
registration or other proceedings under federal and state securities laws as may
in the Company's opinion be necessary or appropriate. The Option Holder
understands that the Company is under no obligation to register, qualify or list
the shares with the Securities and Exchange Commission, any state securities
commission or any stock exchange to effect such compliance.
3. Date of Grant; Expiration of Option Rights. The option rights
granted hereunder shall be deemed to have been granted on the date set forth
below. The option rights granted hereunder, to the extent such rights have not
then expired or been exercised, shall terminate and become null and void on
December 31, 2000 ("Expiration Date").
4. Termination of Option. Except as provided in this Paragraph 4, this
option shall terminate and may not be exercised if Option Holder ceases to be
engaged as an independent contractor or employed by the Company. Option Holder
shall be considered to be engaged as an independent contractor or employed by
the Company for all purposes under this Paragraph 4 if Option Holder is an
officer, director or full-time employee of the Company or if Option Holder is
rendering substantial services (defined herein to mean more than 35 hours per
week) as a consultant, contractor or advisor to the Company. The date on which
the Option Holder has ceased to be engaged as an
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independent contractor or employed by the Company shall be referred herein as
the "Termination Date".
4.1 Termination Generally. If Option Holder ceases to be engaged
as an independent contractor or employed by the Company for any reason except
death or disability, this option, to the extent (and only to the extent) that it
xxxx have been exercisable by Option Holder on the Termination Date, may be
exercised by Option Holder, but only within thirty (30) days after the
Termination Date; provided that this option may not be exercised in any event
after the Expiration Date.
4.2 Death or Disability. If Option Holder's engagement as an
independent contractor or employment with the Company is terminated because of
the death of Option Holder or the permanent and total disability of Option
Holder within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986 (as amended) ("Code"), this option, to the extent (and only to the extent)
that it would have been exercisable by Option Holder on the Termination Date,
may be exercised by Option Holder (or Option Holder's legal representative), but
only within six (6) months after the Termination Date, provided that this option
may not be exercised in any event later than the Expiration Date.
5. Nonassignability of Option Rights. The option rights granted
hereunder (i) shall be exercisable only by the Option Holder, except in the
event of the death of the Option Holder, the Option Holder's personal
representative or any person who acquires such rights by bequest or inheritance
may exercise the rights set forth herein as set forth in Paragraph 4 hereof,
(ii) shall not be transferred, assigned, pledged or hypothecated in any manner
whatsoever, whether voluntarily, involuntarily or by operation of law, and (iii)
shall not be subject to execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate, or otherwise dispose of the
said option rights contrary to the provisions hereof, the said option rights
shall immediately terminate and become null and void.
6. Adjustments. Appropriate proportionate adjustments shall be made by
the Company in the number and class of shares of stock subject to the option
rights granted hereunder and the exercise price of the option rights granted
hereunder in the event that (i) the common stock of the Company is changed by
reason of any stock split, reverse stock split, recapitalization, or other
similar change in the capital structure of the Company, or (ii) the outstanding
number of shares of common stock of the Company is increased through payment of
a stock dividend; provided, however, that the Company shall not be required to
issue fractional shares as a result of any such adjustment. Any such adjustment
shall be made upon approval by the Board of Directors of the Company, whose
determination shall be conclusive. No adjustments shall be required by reason of
the issuance or sale by the Company for cash or other consideration of
additional
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shares of its capital stock or securities convertible into or exchangeable for
shares of its capital stock.
New option rights may be substituted for the option rights granted
hereunder, or the Company's duties under this Agreement may be assumed by a
successor corporation other than the Company, or by an affiliate of such
successor corporation, in connection with any merger, consolidation,
acquisition, separation, reorganization, liquidation, or like occurrence, in
which the Company is involved, and to the full extent permitted thereby.
Notwithstanding the foregoing provisions of this paragraph 6, in the event such
successor corporation, or affiliate of such successor corporation, refuses to
substitute new option rights for, and substantially equivalent to, the option
rights granted hereunder, or to assume the option rights granted hereunder, or
if the Board of Directors of the Company determines, in its sole discretion,
that option rights outstanding under this Agreement should not then continue to
be outstanding, the option rights granted hereunder shall terminate and
thereupon become null and void (i) upon the dissolution or liquidation of the
Company, or similar occurrence, or (ii) upon any merger, consolidation,
acquisition, or separation, or similar occurrence, provided, however, that the
Option Holder shall be given notice of such dissolution, liquidation, merger,
consolidation, acquisition, separation or similar occurrence and shall have the
right, for a period of thirty (30) days after such notice is sent by the
Company, to exercise any unexpired option rights granted hereunder, to the
extent such option rights are then exercisable.
7. Method of Exercise; Rights of Option Holder in Stock. The option
rights granted hereunder shall be exercisable upon written notice of election to
exercise to the Company specifying the number of shares being purchased,
accompanied by payment to the Company of the option exercise price as to the
shares being purchased. Payment of the option exercise price shall be in cash.
Neither the Option Holder nor his personal representatives, heirs, or legatees
shall have any rights or privileges of a stockholder of the Company in respect
to the shares issuable upon the exercise of the option rights granted hereunder,
unless and until certificates representing such shares shall have been issued
and delivered in accordance with the terms hereof. As a condition to the
exercise of this option, the Option Holder, or his personal representatives,
heirs or legatees, shall make arrangements as the Company may require for the
satisfaction of any federal, state or local withholding tax obligations that may
arise in connection with such exercise.
8. Notices. Any notice to be given under the terms of this Agreement
shall be mailed, telecopied, or delivered to the Company, in care of its
Secretary, at the principal office of the Company, and any notice to be given to
the Option Holder shall be mailed, telecopied, or delivered to him at the
address given beneath his signature hereto, or at such other address as either
party may hereafter designate in writing to the other. Any such
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notice shall be deemed to have been duly given forty-eight (48) hours after the
deposit thereof in the United States mail, addressed as aforesaid, registered or
certified and postage and registry or certification fee prepaid.
9. Securities Law Compliance. The Option Holder represents and agrees
that the option rights hereunder are, and the shares to be acquired upon
exercising the option rights will be, acquired for investment, and not with a
view to the sale or distribution thereof. The Option Holder also represents and
agrees that he (i) has a preexisting personal or business relationship with the
Company or one or more of its officers, directors or controlling persons, which
relationship consists of personal or business contacts of a nature and duration
such that Option Holder is aware of the character, business acumen, and general
business and financial circumstance of the person with whom the relationship
exists, or (ii) by reason of his business or financial experience is capable of
evaluating the risks and merits of an investment in the Company and of
protecting his own interests in connection with an investment in the Company, or
(iii) is an officer, director or controlling person, including a promoter, of
the Company. Option Holder understands and acknowledges that the option rights
hereunder and the underlying shares have not been registered under the
Securities Act of 1933, as amended (the "Act") or qualified under any state
securities laws and that, notwithstanding any other provision in this Agreement
to the contrary, the exercise of any rights to purchase shares hereunder is
expressly conditioned upon compliance with the Act and all applicable state
securities laws. In the event that the sale of shares is not registered under
the Act or is not registered or qualified under applicable state securities
laws, but an exemption is available which requires an investment representation
or other representation, the Option Holder shall represent and agree at the time
of exercise that the shares being acquired upon exercising the option rights are
being acquired for investment, and not with a view to the sale or distribution
thereof, and shall make such other representations as are deemed necessary or
appropriate by the Company and its counsel. Certificates evidencing shares
acquired under this Agreement in an unregistered transaction may (as deemed
necessary by counsel to the Company) bear the following restrictive legend (and
such other restrictive legends as are required or deemed advisable under the
provisions of any applicable law):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR IN CONNECTION WITH THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
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10. Persons Bound. Subject to the provisions against assignment set
forth herein, and to the provisions of paragraph 6 hereof, this Agreement shall
be binding upon and inure to the benefit of any successor or successors of the
Company, and the personal representatives, heirs, and legatees of the Option
Holder.
11. Right of First Refusal. All shares acquired upon exercise of this
option shall be subject to certain rights of first refusal as specified in the
Company's Bylaws and certificates representing such shares shall bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON PUBLIC RESALE AND TRANSFER AND RIGHT OF FIRST REFUSAL
OPTIONS HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AND MAY NOT BE
TRANSFERRED EXCEPT AS SET FORTH IN THE ISSUER'S BYLAWS, A COPY OF WHICH
MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND RIGHTS OF FIRST REFUSAL ARE BINDING ON ANY TRANSFEREE OF
THESE SHARES."
12. Tax Liability. THE OPTION HOLDER UNDERSTANDS THAT THIS IS A
NON-QUALIFIED OPTION UNDER FEDERAL TAX LAWS AND THAT OPTION HOLDER MAY SUFFER
ADVERSE CONSEQUENCES AS A RESULT OF OPTION HOLDER'S PURCHASE OR DISPOSITION OF
THE UNDERLYING SHARES. The Option Holder understands that, under current law,
Option Holder will recognize ordinary income in the year or years that the
option rights hereunder are exercised and is advised to seek the advice of his
tax counsel or other tax advisor with respect to the precise treatment of the
exercise of the rights hereunder and the sale of the underlying shares.
13. Miscellaneous.
13.1 This Agreement constitutes the entire contract between the
parties hereto with regard to the services to be provided by Option Holder and
may be modified or amended only by written agreement of the Option Holder and
the Company.
13.2 This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, as such laws are applied
to contracts entered into and performed in such State.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in its behalf by one of its officers as of the date set forth below, and the
Option Holder has hereunto set his hand on or as of said date, which date is the
date such option rights were approved for grant by the Board of Directors of the
Company, and by such execution represents that the address set forth below is
his bona fide place or residence and domicile.
Date: 3/31/95 CYBERSOURCE CORPORATION
By: /s/ XXXXXXX X. XxXXXXXXX
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Name: Xxxxxxx X. XxXxxxxxx
Title: President & CEO
OPTION HOLDER
[SIG]
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(Signature)
Name: /s/ XXXX XXXXXXX
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Address:________________________________
________________________________________
________________________________________
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