VODAVI TECHNOLOGY, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of February 4, 1998,
by and between VODAVI TECHNOLOGY, INC., a Delaware corporation (the "Company"),
and XXXXX X. XXXXXXXXX ("Xxxxxxxxx").
WHEREAS, Xxxxxxxxx and the Company have entered into a Separation Agreement
dated as of February 4, 1998 (the "Separation Agreement"), whereby Xxxxxxxxx'
employment with the Company will be terminated; and
WHEREAS, the Separation Agreement provides that the Company will grant to
Xxxxxxxxx an option to purchase 58,750 shares of the Company's common stock, par
value $.001 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, it is agreed by and between the parties as follows:
1. GRANT OF OPTION; OPTION PRICE. Subject in all respects to the terms,
conditions, and provisions of this Agreement, the Company grants to Xxxxxxxxx,
as of February 20, 1998, the right, privilege, and option (the "Option") to
purchase 58,750 shares of Common Stock (the "Optioned Shares") at a price of
$4.00 per share (the "Option Price").
2. VESTING OF OPTION. The Option shall be fully vested and exercisable with
respect to all of the Optioned Shares as of the date of this Agreement.
3. EXERCISE OF OPTION. All or any portion of the Optioned Shares may be
purchased by Xxxxxxxxx upon written notice to the Company, addressed to the
Company at its principal place of business. Such notice shall be signed by
Xxxxxxxxx and shall state the election to exercise the Option and the number of
Optioned Shares with respect to which it is being exercised. Such notice shall
be accompanied by payment in full of the Option Price for the number of shares
of Common Stock being purchased. Payment may be made in cash or by check or by
tendering duly endorsed certificates representing shares of Common Stock then
owned by Xxxxxxxxx. Upon the exercise of the Option, the Company shall deliver,
or cause to be delivered, to Xxxxxxxxx a certificate or certificates
representing the shares of Common Stock purchased upon such exercise as soon as
practicable after payment for those shares has been received by the Company. All
shares that are purchased and paid for in full upon exercise of the Option shall
be fully paid and non-assessable.
4. TERMINATION OF OPTION. This Option, to the extent not previously
exercised, shall terminate on February 20, 2003.
5. NO PRIVILEGE OF COMMON STOCK OWNERSHIP. Xxxxxxxxx shall not have any of
the rights of a stockholder with respect to the Optioned Shares until Xxxxxxxxx
has exercised the Option and paid the Option Price for the Optioned Shares
purchased upon such exercise.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this Option and
the issuance of the Common Stock upon such exercise shall be subject to
compliance by the Company and Xxxxxxxxx with all applicable requirements of law
relating thereto and with all applicable regulations of any stock exchange or
trading market on which the shares of the Common Stock may be listed or traded
at the time of such exercise and issuance. In connection with the exercise of an
Option hereunder, Xxxxxxxxx shall execute and deliver to the Company such
representations in writing as may be requested by the Company in order for it to
comply with applicable requirements of federal and state securities laws.
7. LIABILITY OF THE COMPANY. The inability of the Company to obtain
approval from any regulatory body having authority deemed by the Company to be
necessary to the lawful issuance and sale of any Common Stock pursuant to this
Agreement shall relieve the Company of any liability with respect to the
nonissuance or sale of the Common Stock as to which such approval shall not have
been obtained. The Company, however, shall use its best efforts to obtain all
such approvals.
8. CAPITAL ADJUSTMENTS. The number of Optioned Shares shall be
proportionately adjusted for any increase or decrease in the number of
outstanding shares of Common Stock of the Company resulting from a subdivision
or consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without the Company's receipt of consideration therefor in money,
services or property.
9. MERGERS, ETC; CHANGE OF CONTROL. If the Company is the surviving
corporation in any merger or consolidation, or upon consummation of a "Change of
Control," as defined below, the Option granted herein shall pertain to and apply
to the securities to which a holder of the number of shares of Common Stock
subject to the Option prior to the merger or consolidation would have been
entitled. A "Change of Control" shall mean (a) a merger or consolidation in
which the Company is not the surviving entity or (b) any reverse merger in which
the Company is the surviving entity.
10. ASSIGNMENT. This Option and the right to acquire Common Stock under
this Agreement may not be assigned, encumbered or otherwise transferred by
Xxxxxxxxx.
11. SECURITIES RESTRICTIONS.
(a) LEGEND ON CERTIFICATES. Except as provided in Section 11(c),
below. All certificates representing shares of Common Stock issued hereunder
shall be endorsed with a legend reading as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ARE `RESTRICTED
SECURITIES' AS DEFINED BY RULE 144 UNDER THAT ACT. THE SHARES MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR, IN LIEU
THEREOF, AN OPINION OF COUNSEL FOR THIS COMPANY TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED UNDER THAT ACT.
(b) PRIVATE OFFERING FOR INVESTMENT ONLY. If the shares to be issued
to Xxxxxxxxx upon the exercise of any Option have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), the Arizona Securities Act
(the "Arizona Act") or the securities laws of any other jurisdiction, those
shares will be "restricted securities" within the meaning of Rule 144 under the
1933 Act and must be held indefinitely without any transfer, sale or other
disposition unless (i) the shares are subsequently registered under the 1933
Act, the Arizona Act and the securities laws of any other applicable
jurisdiction, or (ii) Xxxxxxxxx obtains an opinion of counsel which is
satisfactory to counsel for the Company that the shares may be sold in reliance
on an exemption from registration requirements. By the act of accepting an
Option, Xxxxxxxxx agrees (1) that any shares of Common Stock acquired will be
solely for investment and not with any intention to resell or redistribute those
shares, and (2) such intention will be confirmed by an appropriate certificate
at the time the Common Stock is acquired if requested by the Company. The
neglect or failure to execute such a certificate, however, shall not limit or
negate the foregoing agreement.
(c) REGISTRATION STATEMENT. If a registration statement covering the
shares of Common Stock issuable hereunder is filed under the 1933 Act and is
declared effective by the Securities and Exchange Commission, the provisions of
SECTIONS 11(a) and 11(b) shall terminate during the period of time that such
registration statement, as periodically amended, remains effective.
12. TAX WITHHOLDING. The Company's obligation to deliver Common Stock under
this Agreement shall be subject to Xxxxxxxxx'x satisfaction of all applicable
federal, state, and local income tax withholding requirements.
13. BINDING EFFECT. Subject to the restrictions on transfer set forth in
SECTIONS 10 and 11, this Agreement shall inure to the benefit of and be binding
upon the parties hereto.
14. DEFINED TERMS. All capitalized terms herein that are not otherwise
defined herein shall have the same meaning ascribed to such terms in the
Employment Agreement.
15. 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
Company in care of the Corporate Secretary at its principal corporate offices.
Any notice required to be given or delivered to Xxxxxxxxx shall be in writing
and addressed to Xxxxxxxxx at the address indicated on the signature page
hereto. All notices shall be deemed to have been given or delivered upon
personal delivery or upon deposit in the United States mail, postage prepaid,
return receipt requested, and properly addressed to the party to be notified.
16. INTEGRATION AND MODIFICATION. This Agreement and the Separation
Agreement embody the full understanding of the parties with respect to the
subject matter hereof, superseding any and all prior agreements, and no
amendment or modification thereof shall be effective unless the same shall be in
writing and signed by both of said parties.
17. GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed by, the laws of the state of Arizona, without regard to application
of conflicts of law principles.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused it to be executed on the day and year first above written.
VODAVI TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxxxx, President
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/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
Address:
0000 X. Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
