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EXHIBIT 10.8
FORM OF DIRECTOR/OFFICER
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as
of the 16th day of April 1999, by and between PROACTIVE TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and __________________, an individual
resident of the State of _______ ("Optionee").
W I T N E S S E T H:
WHEREAS, in connection with Optionee agreeing to serve as a Director of
the Company, the Company desires to grant non-qualified stock options to
Optionee; and
WHEREAS, the Optionee has agreed to serve as a Director of the Company.
NOW, THEREFORE, in consideration of their mutual undertakings, it is
agreed by and between parties hereto as follows:
12. The Company hereby grants to Optionee as of the date hereof
stock options to purchase _____________________ shares of the common stock, $.04
par value, of the Company (the "Common Stock") at a price of $0.4177 per Option
Share. The option vests and becomes exercisable on the following schedule: 25%
on the first date on which the Closing Price is greater than or equal to $1.00
for ten consecutive trading days; 50% on the first date on which the Closing
Price is greater than or equal to $1.25 for ten consecutive trading days; 75% on
the first date on which the Closing Price is greater than or equal to $1.50 for
ten consecutive trading days; 100% on the first date on which the Closing Price
is greater than or equal to $1.75 for ten consecutive trading days. The option
expires at 11:59 p.m., Atlanta time, on April 21, 2009 (the "Expiration Date").
"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. "Closing Price"
means the closing price per share of the Common Stock on the American Stock
Exchange.
13. 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.
14. 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., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The stock option shall be deemed to have been
exercised on the date the Company receives the written notice and the required
cash or 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.
15. 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
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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 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.
16. 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.
17. 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.
18. 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
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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.
19. To the extent not superseded by federal law, the laws of
Delaware shall control in all matters relating to this Agreement.
20. 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.
21. 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.
22. 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:
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Its:
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OPTIONEE
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EXHIBIT A
TO: Proactive Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Pursuant to the Non-Qualified Stock Option Agreement (herein called the
"Agreement"), dated as of April 16, 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,
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(Sign Name)
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(Print Name)
DATED:
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