STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into this 13th day of May, 1997, by and between
Xxxxx X. Xxxxxxx ("Gergacz") and Brite Voice Systems, Inc. ("Brite");
WHEREAS, Gergacz and Brite have heretofore entered into an Employment
Agreement dated December 2, 1996; and
WHEREAS, the Employment Agreement contains, among other things, a grant of
options to purchase shares of common stock of Brite in favor of Gergacz; and
WHEREAS, due to adverse price movements in Brite's common stock since the
date of such option grant, the incentive intended to be provided to Gergacz by
the options has been substantially diminished; and
WHEREAS, it is deemed necessary and appropriate and in Brite's best
interests to provide significant incentives to Gergacz as Brite's President and
Chief Executive Officer;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. NEW OPTION GRANT.
1.1 OPTION GRANT. Brite hereby grants Gergacz non-statutory stock
options ("Options") to purchase 300,000 shares of its no par value common
stock (the "Stock") at the option exercise price of $8.50 per share, being
the fair market value of the Stock as of the close of business on the date
hereof.
1.2 VESTING OF OPTIONS. Subject to such further limitations and
qualifications as are provided herein, the Options shall be exercisable as
follows:
a. 150,000 shares on December 2, 1998; and
b. 150,000 shares on December 2, 1999.
Upon termination of Gergacz's employment, Gergacz shall have the
right to exercise the Options at any time within ninety (90) days after
such termination of employment, to the extent his right to exercise such
Options had accrued pursuant to Section 1.2 and had not previously been
exercised at the date of such termination. Upon a Change in Control, all
previously unexercised Options shall become immediately exercisable and
shall be canceled ninety (90) days thereafter.
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1.3 METHOD OF EXERCISE. Each option shall be exercised by written
notice, directed to the Chief Financial Officer of Brite at Brite's
principal place of business and accompanied by a check in payment of the
exercise price for the number of shares of Stock being purchased. Brite
shall make immediate delivery of the Stock to be acquired upon such
exercise, provided that, if any law or regulation requires Brite to take
any action with respect to the Stock specified in such notice or for the
issuance thereof, the date of delivery of such Stock shall be extended for
the period necessary to take such action.
1.4 TERMINATION OF OPTIONS. Except as herein otherwise stated, each
Option, to the extent not previously exercised, shall terminate on
December 2, 2006.
1.5 RECAPITALIZATION.
a. Subject to any required action by the stockholders, the
number of shares of Stock covered by each outstanding Option, and the
price per share of each such Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares
of Stock of Brite resulting from a subdivision or consolidation of
shares or the payment of a stock dividend (but only on the Stock) or
any increase or decrease in the number of such shares effected
without receipt of consideration by Brite.
b. Subject to any required action by the stockholders, if
Brite shall be the surviving corporation in any merger or
consolidation, each outstanding Option shall pertain to and apply to
the securities to which a holder of the number of shares of Stock
subject to the Option would have been entitled.
c. In the event of a change in the Stock as presently
constituted, which is limited to a change of all if its authorized
shares with par value into the same number of shares with a different
par value or without par value, the shares resulting from any such
change shall be deemed to be the Stock.
d. To the extent that the foregoing adjustments relate to
stock or securities of Brite, such adjustments shall be made by the
Board, whose determination in such respect shall be final, binding
and conclusive.
e. Except as hereinbefore expressly provided, Gergacz shall
have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or
any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger of
consolidation or spin-off of assets or stock of another corporation,
and any issue by Brite of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not effect, and
no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Stock subject to an Option.
1.6 RIGHTS PRIOR TO EXERCISE OF OPTION. The Options are
nontransferable by Gergacz, and during his lifetime are exercisable only
by him; provided, however, in the event of the death of Gergacz, the
Options may pass to his executor or administrator or any person who shall
acquire the Options directly from Gergacz or his estate by bequest or
inheritance. Gergacz shall not have any rights as a stockholder with
respect to any
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shares covered by the Options until the date of the issuance of a stock
certificate to him for such shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record
date is prior to the date such stock certificate is issued, except as
provided in Section 1.5 hereof.
1.7 INVESTMENT PURPOSE. The Options are granted on the condition
that any purchase of Stock thereunder shall be for investment purposes,
and not with a view to resale or distribution, except that in the event
the Stock subject to the Options is registered under the Securities Act of
1933, as amended, or in the event a resale of such Stock without such
registration would otherwise be permissible, such condition shall be
inoperative if, in the opinion of counsel for Brite, such condition is not
required under the Securities Act of 1933 or any other applicable law,
regulation, or rule of any governmental agency.
2. SURRENDER OF OPTIONS. In consideration of the grant of options
provided for in Section 1.1 hereof, Gergacz surrenders to Brite options
covering 150,000 share of Stock vesting on December 2, 1998 and options
covering 150,000 shares of Stock vesting on December 2, 1999, such options
being described in subsections c and d of section 3.2 of the Employment
Agreement. Otherwise, to the extent not amended specifically by the terms of
this Agreement, the Employment Agreement between Gergacz and Brite shall remain
in full force and effect.
3. GOVERNING LAW. This Agreement is executed pursuant to and shall be
governed by the laws of the State of Kansas.
4. BINDING EFFECT. Subject to all restrictions provided for herein and
by applicable law relating to assignment and transfer of job options provided
for herein, this agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior understandings, agreements,
written or oral, with respect to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
except by written instruments signed by the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement on and
effective as of the date first set forth above.
Brite Voice Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Chairman of the Board
/100069
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