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EXHIBIT 7.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as
of the 11th day of February 1999, by and between PROACTIVE TECHNOLOGIES, INC.,
a Delaware corporation (the "Company"), and C. XXXXXXX XXXXX, an individual
resident of the State of Georgia ("Optionee").
W I T N E S S E T H:
WHEREAS, in connection with Optionee agreeing to serve as President of
the Company and pursuant to the terms of Optionee's employment as agreed to by
and between Optionee and the Company, the Company desires to grant
non-qualified stock options to Optionee; and
WHEREAS, the Optionee has agreed to serve as the President of the
Company.
NOW, THEREFORE, in consideration of their mutual undertakings, it is
agreed by and between parties hereto as follows:
1. The Company hereby grants to Optionee as of the date hereof
stock options to purchase Seven Hundred Thousand (700,000) shares of the common
stock, $.04 par value, of the Company (the "Common Stock") exercisable at any
time after May 11, 1999 and prior to 11:59 p.m., Atlanta time, on February 10,
2009 (the "Expiration Date") at a price of $0.4375 per Option Share. "Option
Share(s)" shall mean the share(s) of Common Stock which shall be purchased or
shall be available for purchase upon exercise of the stock option granted
hereby and any security which shall be issued in lieu of or in addition to any
other Option Share by reason of any recapitalization, special dividend
transaction or other such event as provided in Section 5 below.
2. Except as otherwise provided below, the option granted hereby
may be exercised at any time, or from time to time, in whole or in part, until
the Expiration Date. The exercise of all or any portion of the stock option
granted hereby will be contingent upon receipt by the Company of the advice of
counsel to the Company that such Option Shares have been duly listed on the
principal exchange on which the Company's securities are traded, and duly
registered or are exempt from registration under the applicable securities laws
and, in the absence of registration of the Option Shares and to the extent
required by such counsel, the receipt from the Optionee of a representation
that the Optionee intends at the time of such exercise to acquire the Option
Shares for investment only and not for distribution or resale.
3. The Optionee may exercise all or any part of the stock option
(in whole Option Shares) by delivering written notice to the Company of the
number of Option Shares to be purchased together with cash or check, in payment
of the full purchase price of the Option Shares to be acquired. Notice shall be
sent to the Company at Proactive Technologies, Inc., 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. The stock option shall be deemed to have
been exercised on the date the Company receives the written notice and the
required cash or
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check in full payment for the purchased Option Shares, or shares of Common
Stock if the payment is to be made in such manner. A form of notice which will
be deemed satisfactory by the Company is attached to this Agreement as Exhibit
A. Upon any exercise of the stock option the Company shall cause to be
delivered to the Optionee a certificate or certificates registered in the name
or the Optionee for the number of Option Shares purchased. The Optionee shall
not have any of the rights of a Stockholder with respect to the Option Shares
except to the extent that the Optionee duly exercises the stock option granted
hereby with respect to such Option Shares. As a condition of exercise of this
option, the Company may, in its sole discretion, withhold or require the
Optionee to pay or reimburse the Company for any taxes which the Company
determines are required to be withheld in connection with the grant or any
exercise of this option.
4. Notwithstanding the foregoing provisions requiring payment by
cash or check, if stock of the class then subject to this option is then
"publicly traded" (as hereafter defined), then payment of the purchase price or
any portion thereof may also be made in whole or in part with shares of the
same class of stock as that then subject to this option, surrendered in lieu of
the payment of cash concurrently with such exercise, the shares so surrendered
to be valued on the basis of the Fair Market Value of the stock (as hereinafter
provided) on the date of exercise, in which event the stock certificates
evidencing the shares so to be used shall accompany the notice of exercise and
shall be duly endorsed or accompanied by duly executed stock powers to transfer
the same to the Company; provided, however, that such payment in stock instead
of cash shall not be effected and shall be rejected by the Company if (a) the
Company is then prohibited from purchasing or acquiring shares of the class of
its stock thus tendered to it or (b) the right or power of the person
exercising the option to deliver such shares in payment of the purchase price
is subject to the prior interest of any person (other than the Company) as
indicated by legends upon the certificate(s) or known to the Company. If the
Company rejects the payment in stock, the tendered notice of exercise shall not
be effected hereunder unless promptly after being notified of such rejection
the person exercising the option pays the purchase price in acceptable form. If
and while payment with stock is permitted in accordance with the foregoing
provision, then the person then entitled to exercise this option may, in lieu
of using previously outstanding stock therefor, use a portion of the shares as
to which this option is then being exercised, in which case the notice of
exercise need not be accompanied by any stock certificates but shall include a
statement directing the Company to retain so many shares that would otherwise
have been delivered by the Company upon that exercise of this option as equals
the number of shares that would have been surrendered to the Company if the
purchase price had been paid with previously issued stock. If the Company is
required to withhold on account of any federal, state or local tax imposed as a
result of any exercise of this option with previously issued stock or by
retention of a portion of Option Shares under this section, then the stock
surrendered or retained shall include an additional number of shares whose Fair
Market Value equals the amount thus required to be withheld. For purposes
hereof, "publicly traded" shall mean that a class of the capital stock of the
Company is listed or admitted to unlisted trading privileges on a national
securities exchange or designated as a national market systems security on an
interdealer quotation system by the National Association of Securities Dealers,
Inc. ("NASD") or if sales or bid and offer quotations are reported for that
class of stock in the automated quotation system ("NASDAQ") operated by the
NASD. Further, "Fair Market Value" shall mean the closing price of such stock
as of the day in question or, if such day is not a trading day in the principal
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securities market or markets for such stock, on the nearest preceding trading
day, as reported with respect to the market (or the composite of markets, if
more than one) in which shares of such stock are then traded, or, if no such
closing prices are reported, on the basis of the mean between the high bid and
low asked prices that day on the principal market or quotation system on which
shares of such stock are then quoted, or, if not so quoted, as furnished by a
professional securities dealer making a market in such stock selected by the
Board of Directors of the Company.
5. In the event of changes in the outstanding shares of Common
Stock by reason of stock dividends, stock splits, subdivisions or combinations
of shares, the number of Option Shares shall be correspondingly and fairly
adjusted by the Board of Directors of the Company, the decision of which shall
be final and conclusive. A corresponding adjustment shall be made without
change in the total exercise price applicable to the unexercised portion of the
Option Shares with a corresponding adjustment in the exercise price per share.
6. If the Company is merged, consolidated or effects a share
exchange with another corporation (whether or not the Company is the surviving
corporation), or if substantially all of the assets or all of the Common Stock
is acquired by another corporation, or in the event of a separation,
reorganization or liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company hereunder, shall make appropriate provision for the protection
of the option granted hereby by the substitution on an equitable basis of
appropriate stock of the Company, or of the merged, consolidated or otherwise
reorganized corporation which will be issuable in respect to the shares of
Common Stock, provided only that the excess of the aggregate fair market value
of the Option Shares immediately after such substitution over the exercise
price thereof is not more than the excess of the aggregate fair market value of
the Option Shares immediately before such substitution over the exercise price
thereof. Notwithstanding the preceding sentence, if the Company is merged,
consolidated or effects a share exchange with another corporation or if
substantially all of the assets or all of the Common Stock is acquired by
another corporation, or in the event of a separation, reorganization or
liquidation of the Company, then the Board of Directors of the Company or the
board of directors of any corporation assuming the obligations of the Company
hereunder may, on or before the thirtieth (30th) day following such event and
upon written notice to the Optionee, provide that the option granted hereby
must be exercised within sixty (60) days of the date of such notice or it will
be terminated.
7. This Agreement shall not be assignable or transferable by
Optionee otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and the stock option hereby
granted shall not be exercised by any person other than Optionee during
Optionee's lifetime. After the death of Optionee, the person to whom Optionee's
rights hereunder pass under Optionee's will or under the laws of descent and
distribution shall be deemed the holder of the stock option granted hereby.
8. To the extent not superseded by federal law, the laws of
Delaware shall control in all matters relating to this Agreement.
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9. Optionee understands that the Option Shares are not
registered under the Securities Act of 1933 (the "1933 Act") or any state
securities act and will be issued to Optionee pursuant to exemptions from
registration thereunder. Optionee also understands that applicable securities
laws may restrict the right of Optionee to exercise the stock option or to
dispose of any shares which Optionee may acquire upon any such exercise and may
govern the manner in which such shares must be sold. Optionee shall not offer,
sell or otherwise dispose of any of the Option Shares acquired by reason of the
exercise of the stock option in any manner which would violate the 1933 Act or
any other state or federal law or cause the Company to have to make any filing
or take any action to avoid such a violation.
10. Optionee hereby represents that all Option Shares purchased
by him pursuant to his exercise of all or any portion of the stock option will
be acquired only for investment and not with a view to distribution or resale.
11. All pronouns, defined nouns and any variations thereof in
this Agreement shall be deemed to refer to the masculine, feminine or neuter
gender and to either singular or plural, whenever the context of this Agreement
so requires.
IN WITNESS WHEREOF, Optionee has executed and delivered this Agreement
and the Company has caused this Agreement to be executed and delivered on its
behalf by its duly authorized representative, as of the day and year above
written.
PROACTIVE TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXX
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Its: CHAIRMAN
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OPTIONEE
/s/ C. XXXXXXX XXXXX
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C. Xxxxxxx Xxxxx
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EXHIBIT A
TO: Proactive Technologies, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Pursuant to the Non-Qualified Stock Option Agreement (herein called
the "Agreement"), dated as of February 10, 1999, by and between Proactive
Technologies, Inc. (the "Company") and me, I hereby give notice that I elect to
exercise the stock option granted under the Agreement with respect to ______
shares of the common stock of the Company as of the date on which this notice
is delivered to the Company, and accordingly I hereby agree to purchase such
shares at the price and on the terms established under the Agreement. Full
payment for such shares is enclosed. Such payment consists of:
Cash
----------
Check
----------
shares of the Company's common stock, _____ of which
---------- are previously owned.
I hereby represent and warrant that I am purchasing such shares for
investment purposes only and not with a view to distribution or resale.
I hereby agree that the stock option granted under the Agreement shall
be deemed to have been exercised to the extent specified in this notice on the
exercise date below my signature, and I hereby warrant that on such date this
notice was delivered to the Company.
Sincerely,
-------------------------------
(Sign Name)
-------------------------------
(Print Name)
DATED:
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