U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 10-KSB
_________________________
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Fiscal Year Ended June 30, 1996
__________________________
Commission File Number 1-8662
PROACTIVE TECHNOLOGIES, INC.
(formerly KEYSTONE MEDICAL CORPORATION)
(Exact name of registrant as specified in its charter)
Delaware 23-2265039
(State of Incorporation)(IRS Employer Identification No.)
7118 Beech Ridge Trail
Tallahassee, Florida 32312
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(904) 668-8500
Securities Registered Pursuant to Section 12(b)
of the Securities Exchange Act of 1934:
Name of each exchange on
Title of Class which
registered
Common Stock, par value $0.04 American Stock Exchange
Securities Registered Pursuant to Section 12(g)
of the Securities Exchange Act of 1934:
None
Check whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding twelve months (or for such shorter
period that the Registrant was required to file such reports),
and (2) has been subject to such filing requirements for the
past 90 days.
Yes ____ No X
Indicate by a check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-B is not contained herein,
and will not be contained, to the best of Registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of the Form 10-KSB or any amendment
to this Form 10-KSB. [X ]
The Registrant's revenues for its most recent fiscal year
(six months ending June 30, 1996) $10,702,130.
The aggregate market value of the voting stock held by non-affiliates
computed by reference to the price at which the stock was sold,
or the average bid and asked prices of such stock,
as of a specified date within the past 60 days:
As of September 20, 1996, $15,939,631.
Check whether the issuer has filed all documents and reports
required to be filed by Section 12, 13 or 15(d) of the
Exchange Act after the distribution of securities under a
plan confirmed by a court.
Yes ___ No X
The number of shares outstanding of the Registrant's
Common Stock as of September 20, 1996: 14,803,018.
Transitional Small Business Disclosure Format:
Yes No X
PART I
Item 1. Description of Business.
INTRODUCTION
General
Proactive Technologies, Inc. ("PTEK" or the "Company") was organized
as a Delaware corporation in 1982 and has been primarily a holding
company. Historically, the Company's two subsidiaries were
Keystone Laboratories, Inc. ("Keystone") and Proactive Solutions, Inc.
("Proactive Solutions"), respectively. Keystone operated a drug
screening and confirmatory drug testing lab. Proactive Solutions was
in the development stage of developing computer software for business
management systems. As of June 30, 1996, the Company no longer owned
these subsidiaries.
Pursuant to the Bankruptcy Plan confirmed on November 21, 1995 (see
"Chapter 11 Bankruptcy" discussed below), the Company disposed of its
interest in Proactive Solutions by transferring the Company's shares of
common stock of Proactive Solutions to the persons from whom the Company
acquired Proactive Solutions in June 1994 in exchange for the 375,000
shares of the Company's common stock that had been issued to such persons
in such acquisition.
As described more fully below (see "ACQUISITIONS"), on February 12, 1996,
PTEK acquired 100% of the outstanding common stock of Capital First
Holdings, Inc. ("Capital First") through the issuance of 8,559,077 shares of
PTEK common stock, which represented approximately 80% of the voting shares of
PTEK immediately after the transaction. For accounting purposes, the
acquisition of Capital First by PTEK has been treated as a recapitalization of
Capital First with Capital First as the acquiror (a "reverse acquisition").
As a result, the Company's financial statements included herein, with respect
to periods before February 12, 1996, reflect the results of operations of
Capital First.
After the reverse acquisition was completed, PTEK determined that the drug
screening business of Keystone was inconsistent with the long-term business
objectives of Capital First. As a result, PTEK decided to sell or otherwise
dispose of its interest in Keystone. On June 29, 1996, the Company entered
into an agreement to sell all of its stock in Keystone to Clark Capital Corp.,
Richard T. Clark, Jr., Joel C. Holt, and G. David Gordon (the "Clark Group").
The Clark Group is composed of former officers or shareholders of the Company.
The purchase price under the agreement was $1,500,000, such amount payable in
shares of PTEK common stock, using an assigned value of $3.50 per share, or,
at the option of the Clark Group, cash.
Under the agreement, approximately $250,000 of the purchase price is due at
Closing with the remainder due on or before July 31, 1997, such remainder
bearing interest at the rate of 8% per annum; such interest, also at the
option of the Clark Group, may be payable in PTEK stock. On July 28, 1996,
the Company received approximately 69,000 shares of PTEK common stock towards
the purchase price, and anticipates it will receive its common stock for the
remaining purchase price and interest.
As a result of the dispositions of Keystone and Proactive Solutions and the
acquisitions described below (see "ACQUISITIONS"), as of June 30, 1996, the
Company was a holding company conducting, through subsidiaries, two
businesses: development of residential real estate and the manufacturing of
specialty construction materials.
Chapter 11 Bankruptcy
On September 1, 1995, the Company, along with its two subsidiaries at that
date, Keystone and Proactive Solutions, filed a petition under Chapter 11 of
the U.S. Bankruptcy Code for voluntary bankruptcy in the United States
Bankruptcy Court for the Northern District of Oklahoma (the "Court").
Although the Court dismissed the separate petition of Keystone Labs, the
Company and Proactive Solutions were placed under the Court's protection. On
November 21, 1995, the Court confirmed the Equity Securities Holders' Plan of
Reorganization (the "Plan"). Pursuant to the Plan, most of the Company's
creditors were paid in December 1995 by issuing to them shares of the
Company's common stock. The Company's remaining creditors were paid in
January 1996. Also pursuant to the Plan, certain classes of the Company's
stockholders received warrants entitling them to purchase the Company's common
stock at $2.00 per share (after a 4-for-1 reverse stock split) in exchange for
the release of their respective claims against the Company. The warrants were
scheduled to expire on July 1, 1996. Pursuant to the Plan, as of June 30,
1996, approximately 996,000 warrants were exercised and the Company received
approximately $1,992,000 in cash. In addition, the Company effectively
extended to November 30, 1996, the expiration date of approximately 1,180,000
of the remaining warrants based on the request of the warrant holders.
ACQUISITIONS
Real Estate Development-Completed Acquisitions
Capital First Holdings, Inc.
Capital First Holdings, Inc. ("Capital First"), was organized as a Florida
corporation in 1994, and is engaged primarily in the design, development and
sales of single-family subdivisions in Tallahassee (Leon County), Florida. In
addition, Capital First is the developer of condominium projects in Vero
Beach, Florida. On February 12, 1996, the Company acquired all of the issued
and outstanding shares of common stock of Capital First from Mark A. Conner
("Conner") in exchange for 8,559,077 of newly issued shares of the Company's
common stock. For accounting purposes, the transaction has been treated as a
reverse acquisition. After the reverse acquisition by Capital First, Conner
was appointed to the Company's Board of Directors and elected its President
and Chief Executive Officer. In connection with the acquisition, it was
contemplated that Conner would enteinto a five-year employment agreement. As
of September 30, 1996, such employment agreement had not been executed.
Killearn Properties, Inc.
Killearn Properties, Inc. ("Killearn") is a developer of single-family
subdivisions, now primarily operating in Stockbridge (Henry County), Georgia.
In November 1993, Capital First purchased substantially all of Killearn's real
estate holdings in Florida. In April 1996, the Company purchased 115,700
shares of the common stock of Killearn on the open market at an average price
of $8.58 per share. As of June 30, 1996, the Company owed approximately
$490,000 on a line of credit used to finance this purchase.
In May 1996, the Company proposed a transaction with Killearn whereby Killearn
would "split-off" certain assets (consisting of a golf course and country
club, a newly constructed inn and certain joint venture interests) to an
entity controlled by J.T. Williams ("Williams"), Killearn's Chairman of the
Board, President and Chief Executive Officer, in exchange for Williams'
approximately 42% effective common stock interest in Killearn.
By August 1996, the Company had acquired an additional 199,550 shares of
Killearn common stock in three separate transactions with Killearn
shareholders. In each such purchase, for each share of Killearn common stock
acquired, the Company issued four shares of its common stock to the respective
seller. The 798,200 shares of the Company's common stock issued in these
transactions were valued, based on the relevant closing bid prices of the
common stock on the American Stock Exchange, at approximately $2,300,000. In
connection with one such acquisition, whereby the Company issued 139,600
shares to James H. Dahl, IRA, 80,000 shares to James H. Dahl and Georgia P.
Dahl, JTWROS, and 107,200 shares to Rock Creek Partners, Ltd., the Company
agreed to register the shares of its common stock issued to the sellers under
the Securities Act of 1933 (the "1933 Act") on or before July 31, 1997. In
case such shares are not so registered, the Company will be required to issue
to the sellers an additional 98,040 shares of its common stock. As a result
of these acquisitions, as of August 1996, the Company owned approximately
21.9% of the total number of issued and outstanding shares of Killearn's
common stock.
On July 31, 1996, Killearn's Board of Directors approved the proposed
split-off (the "Split-Off") and, on August 2, 1996, Killearn and Williams
entered into an agreement regarding the Split-Off. On September 30, 1996,
Killearn's shareholders (other than Williams) approved the split-off and
elected Conner to Killearn's Board of Directors. Conner was also elected
Chairman and Chief Executive Officer of Killearn, and two of the Company's
nominees (Flowers and Robert E. Maloney, Jr.) were appointed to Killearn's
board.
When the Split-Off is consummated, PTEK's interest in Killearn's outstanding
common stock will increase to approximately 35%. In connection with the
Split-Off, the Company has agreed to make a $2 million loan to Killearn. If
the Split-Off is not consummated on or before October 31, 1996, the Company
has indicated that it intends to pay $2 million to reduce the outstanding
principal balance due to Killearn by Capital First under the purchase money
mortgage promissory note owed by Capital First to Killearn in connection with
the acquisition by Capital First of the Golden Eagle, Eagle's Ridge and
Killearn Lakes subdivisions in November 1993.
In addition, on July 29, 1996, PTEK delivered a letter to Killearn's Board of
Directors proposing that PTEK and Killearn enter into an agreement under
which PTEK will provide sales personnel, training and techniques, and other
management assistance to Killearn in order to increase Killearn's sales of
residential lots. Since August 1, 1996, Killearn and PTEK have been operating
under an informal arrangement for such assistance. It is contemplated that
PTEK and Killearn will enter into a more formal arrangement to that effect on
or before October 31, 1996.
Piney-Z
On December 31, 1995, Conner contributed to Capital First his 33 1/3% limited
partnership interest in Piney-Z Ltd. and Apalachee Partners, Ltd. (the
"Piney-Z Partnerships"). The Piney-Z Partnerships were formed in October
1995, by Conner, Williams and Grace Dansby to develop the so-called "Piney-Z"
development, an approximately 100 acre mixed-use development north of
Tallahassee. On May 17, 1996, the Company purchased Williams' 33 1/3% general
partnership. In the acquisition, the Company issued to Williams 200,000
shares of its common stock (valued at $675,000) and repaid Williams a $25,000
advance he had made to the Piney-Z Partnerships. As a result of these
acquisitions, as of June 30, 1996, the Company and Capital First had a
collective ownership interest of 66 2/3% of the Piney-Z Partnerships. Because
of such ownership percentage (and the fact that the Company became the sole
general partner), the results of the Piney-Z Partnerships have been
consolidated in the Company's financial statements from May 17, 1996 to June
30, 1996.
Real Estate Development-Proposed Acquisitions
Flowers Entities
In August 1996, the Company agreed to acquire the stock of three separate
corporations (the "Flowers Entities") from groups controlled by Langdon S.
Flowers, Jr. ("Flowers"): Highland Properties Construction Co., Inc., a
Georgia corporation ("Highland"), Flowers Properties, Inc., a Georgia
corporation ("Flowers Properties"), and Barrier Dunes Development Corporation,
a Florida corporation ("Barrier Dunes").
Highland owns 626 acres of undeveloped land in Albany, Georgia. When
developed, this land should yield approximately 834 single-family lots of
approximately .75 acres each. Highland expects to offer these lots for sale
at prices between $15,000 and $70,000. On August 13, 1996, the Company agreed
to purchase all of the outstanding stock of Highland from Flowers and George
McIntosh (the "Sellers"), in exchange for 1,050,378 shares of the Company's
common stock issuable to Flowers and 864,623 shares of the Company's common
stock issuable to George McIntosh. In connection with its acquisition of
Highland's common stock, the Company agreed to employ George McIntosh for five
years at his current annual salary of $60,000 per year. The Company also
agreed to pay a selling commission of $1,000 per lot sold to two entities
controlled by the Sellers with respect to each lot on the 626 acres that
Highland develops and sells.
Flowers Properties owns 286 acres of undeveloped land in Thomasville (Thomas
County), Georgia. When developed, this land should yield approximately 450
single-family lots of approximately .50 acre each. Flowers Properties expects
to offer these lots for sale at prices between $15,000 and $40,000. On August
12, 1996, the Company agreed to purchase all of the outstanding stock of
Flowers Properties from Flowers and Langdon S. Flowers, Sr. and certain other
persons related to Flowers (the "Flowers Group"), in exchange for 350,000
shares of the Company's common stock.
Barrier Dunes owns a 30-acre parcel of partially developed land in Cape San
Blas, Florida. On August 12, 1996, the Company agreed to purchase all of the
stock of Barrier Dunes from Flowers and Langdon S. Flowers, Sr., in exchange
for 150,660 shares of the Company's common stock to Flowers and 149,340 shares
of the Company's common stock to Langdon S. Flowers, Sr. In connection with
its acquisition of Barrier Dune's common stock, the Company agreed to
indemnify Flowers with regard to any payments he might have to make as a
guarantor with respect to a $2,145,653 promissory note from Barrier Dunes to
NationsBank, N.A., and to pay Flowers a guaranty fee.
In connection with the Company's acquisition of the stock of the Flowers
Entities, the Company also agreed to issue additional shares of the Company's
common stock to the respective sellers if the average closing price of the
Company's common stock for the last ten trading days prior to December 31,
1996, does not equal at least $3.50 per share. Based on the $3.50 per share
price guarantee, the aggregate proposed purchase price for the stock of all of
the Flowers Entities is estimated to be $8,977,503. The Company also agreed
to appoint Flowers to its Board of Directors.
The acquisition of the Flowers Entities is expected to be consummated in
October 1996. The Company will account for the acquisition of the Flowers
Entities as a purchase.
Specialty Construction Materials
Decocrete International, Inc.
Decocrete International, Inc. ("Decocrete International") is a St. Petersburg,
Florida, based manufacturer of tiles and other alternatives to concrete. As
previously reported, on February 10, 1996, under the direction of Capital
First, the Company's newly-incorporated subsidiary, Decocrete Worldwide, Inc.
("Decocrete Worldwide"), entered into an agreement to purchase the net assets
of Decocrete International in exchange for twenty percent (20%) of the common
stock of Decocrete Worldwide and $72,000 cash. Under the terms of the
purchase agreement, 60% of Decocrete Worldwide's net after-tax profits were to
be allocated to the Company and 40% were to be allocated to Decocrete
International (i.e., the seller). Concurrent with the Closing, Decocrete
International was dissolved and the remaining assets (i.e., the cash and
common stock in Decocrete Worldwide) were distributed to the two shareholders
of Decocrete International, Garat Oakes and Thomas Colmenares. On September
24, 1996, the Company agreed to purchase the stock in Decocrete Worldwide held
by Garat Oates. As a result of these transactions, the Company will own 95%
of Decocrete Worldwide's common stock and will be entitled to 90% of Decocrete
Worldwide's net after-tax profits. The Company accounted for the acquisition
of Decocrete International under the purchase method of accounting.
QuinStone, Inc.
QuinStone, Inc. is a Quincy, Florida, based manufacturer of simulated stone
and other synthetic building products. On September 16, 1996, the Company
purchased 82% of the outstanding stock of QuinStone, Inc. ("QuinStone") from
James A. Dahl and Rock Creek Partners, Ltd. (collectively, the "Dahl Group")
in exchange for 750,000 shares of the Company's common stock ("Exchange
Shares"). Based on the closing bid price of the Company's common stock on
September 16, 1996, the aggregate purchase price paid by the Company in this
acquisition is approximately $2,250,000. As part of the acquisition, the
Company and the Dahl Group entered into a Registration Rights Agreement.
Under such agreement, members of the Dahl Group may request, after September
16, 1997, and before the date at which they may sell the Exchange Shares
pursuant to Rule 144(k) under the 1933 Act, that the Company use its best
efforts to cause the registration of the Exchange Shares under the 1933 Act.
Nonperformance by the Company under the terms of the Registration Rights
Agreement would entitle the Dahl Group to receive an additional 225,000 shares
of the Company's common stock. The Company will account for the acquisition
of QuinStone under the purchase method of accounting.
DESCRIPTION OF THE REAL ESTATE DEVELOPMENT BUSINESS
General
Through its main subsidiary, Capital First, the Company is engaged primarily
in the design, development and sales of lots in single-family subdivisions in
Tallahassee (Leon County), Florida. Capital First offers moderately priced
lots that are designed to appeal to a wide market, ranging from first-time
home buyers to upper-income retirees. Sales prices of most of Capital First's
lots range from approximately $15,000 to approximately $95,000; the average
sales price of lots delivered during the fiscal year ended June 30, 1996, was
$29,870. At June 30, 1996, Capital First had eleven communities in various
stages of planning and development, including eight communities in which the
Company is currently offering lots for sale. In addition, Capital First is
the developer of a condominium project in Vero Beach, Florida.
When determining whether to purchase a particular tract of land, Capital First
considers the cost of the land, the desirability of the proposed project to
targeted home buyers, population growth patterns, competitive conditions, and
available financing. Capital First's land purchase agreements are typically
subject to numerous conditions, including, but not limited to Capital First
obtaining the necessary zoning and other governmental approvals for a proposed
subdivision. During the investigation period, Capital First confirms the
availability of utilities, performs hazardous waste and other environmental
analyses, arranges financing and completes its marketing feasibility studies.
As a result, Capital First is generally able to begin its development
activities immediately after it closes a land purchase. Although Capital
First's policy is to maintain an approximately 4-5 year supply of raw land, it
develops its subdivisions in phases. Therefore, Capital First only begins
developing a new phase of a subdivision after it has sold substantially all of
the lots in a particular subdivision's prior phase.
In developing a new subdivision (or phase thereof), Capital First engages a
general contractor to install the "horizontal" infrastructure of roads,
water, sewer, drainage, gas and electricity. Capital First typically
contracts out its work on a lump-sum basis. Capital First has used the same
(unrelated) general contractor for the last 27 subdivisions it has developed.
Capital First does not maintain significant inventories of construction
materials, except for materials being used in current construction.
Generally, the construction materials used in Capital First's operations are
readily available from numerous sources, but prices may fluctuate due to
various factors, including increased demand or supply shortages. Capital
First does not have any long-term contractual commitments with suppliers of
building materials.
Marketing and Sales
Capital First sells approximately 50% of its lots on a wholesale basis
directly to builders participating in Capital First's custom builder program.
Builders participating in this program are offered the opportunity to purchase
land directly from Capital First. By participating in the program, a builder
agrees to satisfy certain quality, uniformity and other standards when
constructing a house in a Capital First subdivision. As of June 30, 1996, 76
builders were participating in this program. Capital First sells the
remaining 50% of its lots on a retail basis directly to prospective homeowners
desiring to build houses in one of the Capital First subdivisions. Capital
First sells these lots through commissioned sales personnel. Such sales
personnel may sell lots in any Capital First subdivision, but typically
concentrate on selling lots in upper market and golf-course communities. As
of June 30, 1996, there were eight such sales personnel. The Company also
sells its lots through independent real estate brokers.
Capital First's advertising program encompasses various media. Signage is a
primary medium, which is used when construction begins on a new subdivision.
Upon the completion of the horizontal improvements in a subdivision, a full
advertising campaign typically begins, using newspaper, radio, television and
direct mail. In addition, Capital First provides incentives to real estate
brokers to promote broker participation.
Capital First has experienced significant fluctuations in quarterly revenues
as a result of, among other things, the timing of lot closings, the cyclical
nature of the homebuilding industry, changes in prevailing interest rates and
other economic factors. The volume and timing of Capital First's revenues are
also substantially affected by the opening of new residential subdivisions.
Generally, a residential subdivision has its highest sales volume when it is
new (due primarily to the wide choice of available lots), with sales activity
decreasing as a subdivision matures. Capital First does not typically
provide financing with respect to its sales. Occasionally, Capital First will
take a house or other non-cash property as consideration for land sales. At
June 30, 1996, Capital First had approximately $1.1 million of such houses in
its inventory that it is either renting or holding for sale, or both.
Government Regulation and Environmental Matters
In developing a project, Capital First must obtain the approval of numerous
governmental authorities regulating relevant matters, such as permitted land
uses and levels of density, the installation of utility services and the
dedication of acreage for open space, parks and schools. Several authorities
in Florida have imposed impact fees as a means of defraying the cost of
providing certain governmental services to developing areas, and the amounts
of these fees have increased significantly during recent years. The State of
Florida and various localities within the state have also, at times, declared
moratoriums on the issuance of building permits and imposed other restrictions
in areas where the infrastructure (e.g., roads, schools, parks, water and
sewage treatment facilities and other public facilities) does not reach
minimum standards. All of these factors could have a material adverse effect
on Capital First's future development activities.
Capital First is subject to a variety of Federal, state and local regulations
concerning protection of health and the environment. Prior to consummating
the purchase of land, Capital First engages independent environmental
engineers to evaluate such land for the presence of hazardous or toxic
materials, wastes or substances. To date, the Company has not been materially
adversely affected by the presence or potential presence of such materials.
Nevertheless, in some instances, these environmental laws may result in
delays, cause Capital First to incur substantial compliance and other costs,
or prohibit or severely restrict development by Capital First in
environmentally sensitive regions or areas.
Competition
The real estate development industry is extremely competitive and fragmented.
Many of Capital First's competitors are substantially larger and much better
capitalized. Capital First competes on the basis of a number of interrelated
factors, including location, reputation, design, quality and price, with
numerous other entities, including some entities with nationwide operations
and greater financial, marketing, sales and other resources. At times,
competitors may offer lots at discounted prices for financial or other
reasons. Capital First also competes for residential sales with individual
resales of existing lots and condominiums, including sales of lots at deeply
discounted prices by lenders and other similar institutions. Nonetheless,
Capital First's management has been successful at acquiring large tracts of
lands at favorable prices. Capital First endeavors to identify situations
where it is able to purchase quality land at favorable prices by purchasing
such land either from its original owner(s) or through foreclosure. Because
of its experience at expeditiously obtaining the necessary governmental
approvals and then efficiently "manufacturing" raw land into attractive
residential communities, Capital First believes it should remain competitive.
Warranties, Bonds and Other Obligations
In developing subdivisions, Capital First is sometimes required to obtain
performance or maintenance bonds or letters of credit to supplement the
amounts its general contractor is required to obtain. The amount of such
obligations outstanding at any time varies in accordance with Capital First's
pending construction activities. As of June 30, 1996, Capital First's
combined obligations under these bonds were $142,422. In the event any such
obligations are drawn upon because of Capital First's failure to build
required infrastructure or satisfy other obligations, Capital First would be
obligated to reimburse the issuing surety company or bank.
Capital First is also obligated to subsidize homeowners' associations in
certain of its residential developments up to a pro rata portion of expenses
based on the number of lots which have not been closed in such developments.
To date, Capital First has not incurred any costs to subsidize homeowners'
associations, as such associations' revenues have been adequate to cover their
operating costs.
Description of Markets
Tallahassee, Florida
Capital First develops residential properties primarily in the Tallahassee
(Leon County), Florida area. In 1995, the population of the Tallahassee
Metropolitan Statistical Area was approximately 260,000. Tallahassee is the
capital of Florida. It is also the location of Florida State University
("FSU"), Florida A & M University ("FAMU"), Tallahassee Community College and
Lively Technical Center. These institutions have combined enrollment of
nearly 60,000 students. Tallahassee also has significant resources for
research and high technology. In this regard, Innovation Park/Tallahassee is
a research and development center created to encourage the collaboration and
transfer of technology between two affiliated universities - - FSU and FAMU -
- - government laboratories and private industry. In addition, Tallahassee is
the location of the National High Magnetics Field Laboratory, one of the
leading centers for research in magnet-related technologies. Because of the
growth of the Florida state government and the local colleges, the Tallahassee
economy has been relatively stable.
Capital First believes that land regulation in Tallahassee is relatively
complex, but that it is experienced in obtaining the appropriate approvals.
Vero Beach (North Hutchinson Island), Florida
Capital First has completed (and sold out) two high-rise condominium buildings
on North Hutchinson Island, Florida. North Hutchinson Island is east of Fort
Pierce, Florida and 4.5 miles south of Vero Beach, Florida. Capital First is
currently beginning the construction of the Hibiscus Condominium Phase II, a
twelve-story building in which all fifty-eight units are on the oceanfront.
The Hibiscus project's units will be offered for sale at prices ranging from
$150,000 to $250,000. Its principal competition on North Hutchinson Island is
another condominium project with prices starting at $325,000. Capital First
believes the Hibiscus project will appeal to three groups of potential buyers:
those who intend to live on North Hutchinson Island year-round (currently 30%
of the island's population); those who intend to reside on the island
primarily in the winter (currently 35% of the island's population); and those
who live within a two-hour drive and who intend to use their units during the
summer and rent the units out during the winter (currently 35% of the island's
population).
Thomasville, Georgia
Through its future subsidiary, Flowers Properties, the Company will own 286
acres of undeveloped land in Thomasville, Georgia. Thomasville is located in
Thomas County, Georgia, and is approximately 45 miles west of Valdosta,
Georgia and 35 miles northeast of Tallahassee, Florida. Thomasville has
approximately 20,000 residents, with Thomas County as a whole having 40,000
residents. Thomas County is an agricultural and marketing center with a
diversified economy, including vegetable producing, meat packing, lumber,
textiles, baking, and plastics. Flowers Properties intends to develop
approximately 450 single-family lots, of approximately .50 acres each, in a
phased development over four years. Between January 1, 1996 and September 20,
1996, Flowers Properties sold 30 lots in Thomasville. The Company believes
Flowers Properties is competitive in Thomasville and that it will be able to
acquire additional land in Thomasville as necessary for future development.
Cape San Blas, Florida
Through its future subsidiary, Barrier Dunes, the Company will develop a 30-
acre site in Cape San Blas, which is located approximately halfway between
Apalachicola and Panama City on the St. Joseph Peninsula facing the Gulf of
Mexico. Cape San Blas is a convenient resort destination for residents of
Tallahassee and the rest of the Florida Panhandle. As of September 20, 1996,
Barrier Dunes had sold 99 out of 200 total lots.
Albany, Georgia
Through its future subsidiary, Highland, the Company will develop a 626 acre
site in Albany, Georgia. Albany is in Lee County, Georgia and has an
estimated population of approximately 120,000. In Money magazine's 1995
survey of "Best Places" to live, Albany was rated the most liveable city in
Georgia. Albany has large employers such as Proctor & Gamble, Cooper Tire and
Miller Brewing Co. Highland intends to develop approximately 834
single-family lots, of approximately .75 acres each, in a phased development.
Between January 1, 1996 and September 20, 1996, Highland had sold 55 lots in
Albany. Over the last several years, Highland has sold approximately 200 lots
a year in Albany. The Company believes Highland is competitive in Albany and
that it will be able to acquire additional land in Albany as necessary for
future development.
Other Real Estate Investments
In addition to the operations described above, the Company has certain
investments in real estate partnerships formed to carry out specific
development projects. (See Note 6 to the Consolidated Financial Statements.)
DESCRIPTION OF THE SPECIALITY CONSTRUCTION MATERIALS BUSINESS
Decocrete Worldwide, Inc.
This subsidiary manufactures and distributes decorative concrete products for
commercial and residential purposes made out of "Decocrete," a unique
combination of concrete, pigment and sealer. After the standard concrete
mixture is poured, the "Decocrete" design (or pattern) is created by a
tool-stamping process at the finishing stage. Excess pigment is then rinsed
off and a thick coat of "Decocrete" sealer is applied. This sealer protects
the surface from stains and produces a three-dimensional shine, requiring
little or no maintenance, unlike other decorative concrete products.
Decocrete Worldwide is based in St. Petersburg, Florida, where it
maintains administrative offices and manufacturing operations. At its St.
Petersburg facility, Decocrete Worldwide also trains contractors to properly
install its products. As of June 30, 1996, Decocrete had 19 licensees selling
Decocrete products nationally and internationally in 14 states and countries.
Under prior ownership, for the year ending December 31, 1995, Decocrete
revenues were approximately $1,016,000 (unaudited).
Decocrete Worldwide's strongest competitors are large building product
companies such as Inco Chemicals, Inc. and Bomanite, Inc. Such competitors
are larger and have more resources to support new product development and
marketing. Nonetheless, because "Decocrete" is among the longest-lasting and
highest-quality decorative concrete in the industry, the Company believes that
Decocrete Worldwide is well-positioned for growth in both residential and
commercial markets.
QuinStone Industries Inc.
This newly-acquired, 82% owned subsidiary is a manufacturer of synthetic
"simulated" stone building products using polymers, gypsum and recycled
fibers, some of which are covered under letters of United States Patent No.
5,288,775. QuinStone's products include fireplace mantle systems, molding,
custom profiles, wall panels and facades for specialty stores in shopping
centers. Customers include contractors which construct facilities for retail
chains such as Radio Shack, Bombay Stores, Marshall Fields and Nordstrom. No
single customer has thus far been responsible for more than 5% of total sales.
NUMBER OF EMPLOYEES
As of June 30, 1996, the number of persons employed by the Company and each
subsidiary was as follows:
Proactive Technologies, Inc. 3
Capital First Holdings, Inc. 7
Decocrete Worldwide, Inc. 7
The Company (and its subsidiaries) have no collective bargaining agreements
with any unions and believes that overall relations with its employees are
excellent.
Item 2. Property.
General
The Company and Capital First, maintain their offices in a 2,400 square foot
building owned by Capital First and located at 7118 Beech Ridge Trail,
Tallahassee, Florida 32312. Capital First also owns a 2,000 square foot
building on this site in which it provides office space to its sales staff.
Capital First also has small sales offices in the Golden Eagle subdivision and
in Vero Beach, Florida. Management believes that all property occupied by the
Company and its subsidiaries is adequately covered by insurance.
With respect to the Company's former subsidiaries, while part of the Company,
Keystone conducted operations from an approximately 3,600 square foot leased
facility in Asheville, North Carolina. When the Company sold its common stock
in Keystone in June 1996, Keystone continued to operate from the Asheville
facility under the terms of its existing lease. The Company was not liable
under the lease. While it was part of the Company, Proactive Solutions
conducted operations from an approximately 2,000 square foot facility in
Tulsa, Oklahoma. This lease was terminated during the fiscal year ended June
30, 1996.
Real Estate Operations-Materially Important Properties
As described in Item 1. Description of Business above, as of June 30, 1996,
Capital First was engaged in selling residential lots in eight Tallahassee
residential communities, was engaged in the construction of horizontal
infrastructure in three other Tallahassee residential communities and was
developing a condominium project in Vero Beach, Florida. As of June 30, 1996,
Capital First's only materially important properties were Summerbrooke (a golf
course subdivision in Tallahassee), Golden Eagle (another golf course
community in Tallahassee) and Hibiscus Condominium Phase II (a condominium
project in Vero Beach). Capital First holds a fee simple interest in all such
materially important properties.
All land owned by Capital First is properly zoned for its intended use.
Summerbrooke
Summerbrooke features a Dean Refram-designed 18 hole championship golf course,
named "The Players Club at Summerbrooke," and has a 9,000 square foot country
club, grill and bar, with meeting rooms and a pro shop, which an unrelated
party opened in early 1994. It also features a chain of four lakes, with more
than half of the lots located on the golf course or lakefront. Summerbrooke
targets upper-middle class families seeking the benefits of the lakefront and
golf course living. Homes typically consist of four bedrooms and two and a
half baths in 2,600 square feet of living space. The average house price is
$220,000 and the average lot price is $44,000. As of June 30, 1996, there
were 119 remaining developed lots for sale within Summerbrooke, as well as 114
remaining permitted and platted but undeveloped lots on 106 acres of land.
Capital First expects to sell the remaining developed lots within 18 months
and develop and sell the undeveloped lots within the next two years.
Development of this subdivision was financed by means of a credit line with a
local bank, of which $1,221,000 was still outstanding as of June 30, 1996.
The loan matures in January 1997, carries an interest rate of prime plus 1.5%,
with interest-only payments and without prepayment penalties. At maturity,
based on prior history, the Company expects that this loan would be renewed
for at least one year.
Golden Eagle
A gated and guarded community, Golden Eagle features a Tom Fazio-designed golf
course rated in the top 20 courses in the Southeast by Golf Digest magazine.
It is located in the heart of Killearn Lakes Plantation and is surrounded by
three large lakes. The Golden Eagle community includes a 31,000 square foot
club house, as well as a swimming pool, sauna, three dining rooms, banquet
facilities, and tennis courts. Golden Eagle targets upper-income individuals
and retirees. Homes are typically over 3,200 square feet, with four bedrooms
and three baths, and with prices beginning at $250,000 and reaching in excess
of $1 million. The average house price is $300,000 and the average lot price
is $58,000. As of June 30, 1996, there were 126 remaining developed lots for
sale within Golden Eagle, as well as 249 remaining permitted and platted but
undeveloped lots on 239 acres of land. The Company expects to sell the
remaining developed lots within the next two years and develop and sell the
undeveloped lots within the next four years. The Company financed its
purchase of Golden Eagle (as well as the Eagle's Ridge and Killearn Lakes
subdivisions) in November 1993 with a purchase money mortgage from the seller,
Killearn. As of June 30, 1996, approximately $4,060,000 was outstanding on
this loan; the Company intends to pay $2 million towards the outstanding
balance in case the Split-Off of Killearn is not consummated on or before
October 31, 1996. See Item 1. Description of Business - Real Estate
Development-Completed Acquisitions. The loan matures in July 1999, and
carries an interest rate of 7.5%. Development of this subdivision (as well as
the Eagle's Ridge and Killearn Lakes subdivision) was also financed by means
of a line of credit from a local bank, with respect to which approximately
$1,401,000 was still outstanding as of June 30, 1996. The loan matures in the
current fiscal year, carries an interest rate of 10.25%, with interest-only
payments and without prepayment penalties. At maturity, based on prior
history, the Company expects that this loan would be renewed for at least one
year.
In connection with Capital First's November 1993 acquisition of Golden Eagle
(as well as Eagle's Ridge and Killearn Lakes), Capital First also acquired the
Golden Eagle Golf and Country Club (the "GE Country Club") from Killearn.
Since November 1993, Capital First operated the GE Country Club to support the
value of the surrounding property; i.e., the Golden Eagle subdivision. In the
fall of 1995, the management of Capital First concluded that ownership of the
GE Country Club was no longer in the best interest of Capital First. The GE
Country Club was, accordingly, sold on September 27, 1995, to C.C. Sellers for
the aggregate sales price of approximately $3.1 million, at a net loss of
approximately $180,000.
Vero Beach
Hibiscus Condominium Phase II is a twelve-story condominium project which will
consist of 58 units. As of June 30, 1996, construction had not yet begun.
This project will be financed by means of $6.5 million construction loan from
a local bank, carrying interest at prime plus 1.5%, with interest-only
payments, and having a maturity date of March 1998, as well as a proposed
equity investment by Capital First of $1.3 million.
Real Estate Operations-Other Properties
Among Capital First's other properties, as of June 30, 1996, three properties
were relatively significant:
Killearn Lakes Plantation
Killearn Lakes Plantation covers 4,000 acres of former plantation property in
Tallahassee. Killearn Lakes Plantation targets young middle-income families
with children. The average house price is $135,000 and the average lot price
is $26,000. As of September 30, 1996, less than 5% of the lots in this
subdivision were still available for sale.
Eagle's Ridge
Eagle's Ridge is an upscale retirement community catering to retirees who
desire low maintenance living, and is located on the golf course within the
Golden Eagle development. Eagle's Ridge has its own clubhouse, swimming pool
and tennis courts. The average house price is $160,000 and the average lot
price is $27,500. As of June 30, 1996, over 70% of the lots in this
subdivision were still available for sale.
Killearn Commons
Killearn Commons is a three-phase community targeted toward the first-time
home buyer or middle income families. Most homes will have three bedrooms,
two baths and feature 1,400 square feet of living space. The average house
price is $120,000 and the average lot price is $19,500. As of September 30,
1996, approximately 66% of the lots in this subdivision were still available
for sale.
Interest Expense
The interest expense on the mortgage debt for the six months ending June 30,
1996 was approximately $705,000. The interest expense for the twelve month
period ending June 30, 1997, will depend on lot sales, prevailing interest
rates and other factors. In general terms, the principal outstanding with
respect to a mortgage loan is reduced by a certain agreed upon amount as each
lot is sold. The development loans are generally renewed on an annual basis.
Property Used in the Specialty Construction Materials Business
Decocrete Worldwide
Decocrete Worldwide owns a 48,000 square foot facility in St. Petersburg,
Florida. This building houses Decocrete Worldwide's manufacturing operations
and administrative offices where Decocrete Worldwide occupies 22,000 square
feet and subleases portions of the remaining space on short-term leases.
Decocrete Worldwide believes this facility is adequate to support its
projected growth. As of June 30, 1996, Decocrete Worldwide owed approximately
$170,000 on a mortgage loan with respect to this property.
QuinStone
QuinStone leases (with an option to purchase) a 36,000 foot manufacturing
facility in Quincy, Florida. This building houses QuinStone's manufacturing
operations and administrative offices. Management believes this facility is
adequate to support QuinStone's projected growth.
Policies with Respect to Certain Activities
The following is a discussion of investment policies, financing policies and
policies with respect to certain other activities of the Company. Although
the Company has no formal written policies with respect to such activities,
the following discussion outlines the Company's objectives and informal
policies with respect to these activities, which have been determined by the
Board of Directors of the Company and may be changed from time to time at the
discretion of the Board of Directors without a vote of the shareholders of the
Company.
Investment Policies
The Company's primary objective with regard to real estate is to acquire raw
land in Florida and Georgia for the purpose of developing the land into
residential subdivisions. However, future development or investment
activities may not be limited to these geographic areas. The Company's policy
is to develop or acquire raw land in circumstances where management believes
that opportunities exist for acceptable investment returns. The Company may
expand or develop existing properties or sell such properties in whole or in
part as determined by management.
The Company may also participate with other entities in property ownership,
through joint ventures or other types of co-ownership. (See Note 6 to the
Consolidated Financial Statements). Equity investments may be subject to
existing mortgage financing and other indebtedness which would have priority
over the equity interest of the Company. The Company may issue securities to
persons in exchange for properties. The Company may also invest in securities
of entities engaged in real estate activities or securities of other issuers,
including for the purpose of exercising control over such entities and/or
enhancing the value of its investment in such entities, such as its
investments in Flowers Properties, Highland, Barrier Dunes, and Killearn. The
Company may acquire all or substantially all of the securities or assets of
other entities where such investments would be consistent with the Company's
investment policies.
Financing Policies
The Company uses internally generated and borrowed funds to purchase real
estate. In reaching such financing decisions, management considers
traditional mortgage debt-to-asset ratios. Borrowings may be in the form of
bank borrowings, publicly and privately placed debt instruments, or purchase
money obligations to the sellers of properties, any of which indebtedness may
be unsecured or may be secured by any or all of the assets of the Company.
The Company has not established any limit on the number of mortgages that may
be placed on any single property or on its portfolio as a whole, but mortgage
financing instruments usually limit additional indebtedness on such
properties. To the extent the Board of Directors of the Company determines a
need for additional capital, the Company may raise such capital through equity
offerings, debt financings or other methods.
Policies with Respect to Other Activities
The Company has authority to offer and sell shares of its capital stock or
other securities and to repurchase or otherwise reacquire its shares or any
other securities and may engage in such activities in the future. The Company
has no material outstanding loans owed to it by other entities or persons,
including officers and directors. The Company may in the future make loans to
joint ventures in which it participates in order to satisfy such ventures'
working capital needs. The Company has not engaged, and does not intend to
engage in the trading, underwriting or agency distribution or sale of
securities of other issuers. The Company intends to make investments in sua
way that it will not be treated as an investment company under the Investment
Company Act of 1940.
Item 3.Legal Proceedings.
As was previously reported on Form 8-K filed September 13, 1995, in connection
with the filing of its bankruptcy petition, on September 1, 1995, the Company
filed a Complaint in the United States Bankruptcy Court for the Northern
District of Oklahoma alleging certain acts of wrongdoing by Joel C. Holt, a
director, Ira Rimer, a stockholder, G. David Gordon, Esq. and the law firm of
Klenda, Gordon & Getchell, P.C., the Company's former corporate counsel. On
September 5, 1995, the defendants, along with several other parties, filed a
suit in Tulsa County District Court against the Company, William E. Davis and
Donald H. Mitchell, also alleging several acts of wrongdoing. On October 18,
1995, all parties involved in the two separate lawsuits agreed to a settlement
whereby, among other things, all litigation between the parties involved was
dismissed with prejudice. Pursuant to this settlement, William Davis and
Donald Mitchell agreed to resign as directors and officers of the Company and
Keystone Laboratories, Inc. and exchange all their shares of the Company's
common stock and options to purchase such common stock for the common stock of
Proactive Solutions held by the Company.
In addition, under the terms of the settlement agreement, Proactive Solutions
will be responsible for the debts listed in its bankruptcy schedules and has
executed a non-recourse, unsecured, $800,000 promissory note payable to the
Company (the "Note"). The Note is payable annually in an amount equal to one
percent (1%) of the net sales made by Proactive Solutions each year until
December 31, 1998. Under the terms of the Note, any balance remaining on
December 31, 1998, will be extinguished and the Company will not have any
right of recourse against Proactive Solutions. As of June 30, 1996, the
Company has not received any payments with respect to the Note and does not
expect to receive any payments under the Note.
The Company and its subsidiaries are not party to any other legal proceedings,
except in the ordinary course of business. The Company's management does not
believe that any such legal proceedings are material.
Item 4. Submission of Matters to a Vote of Security Holders.
During the fourth quarter of the fiscal year ended June 30, 1996, there were
no matters submitted to a vote of the security holders of the Company.
PART II
Item 5. Market for the Registrant's Common Equity and Related Stockholder
Matters.
Market Information
Until July 15, 1996, the Company's common stock was traded on the over-the
counter market under the symbol "PTEK".
On July 15, 1996, the Company's stock was listed on the American Stock
Exchange under the symbol "PTE". The following table shows the high and low
bid and ask prices of the stock during the last two fiscal years:
Bid Ask
COMMON STOCK
H L H L
Fiscal
Year First Quarter 1 5/8 1 1/8 1 7/8 1 7/16
Ending Second Quarter 2 1 1/4 2 1/4 1 7/16
June 30, Third Quarter 2 1/2 7/8 2 3/4 1 1/8
1995 Fourth Quarter 1 5/16 1/2 1 11/16 5/8
Fiscal
Year First Quarter 1 1/2 1/2 1 5/8 5/8
Ending Second Quarter 1 1/4 1 5/8 1/2
June 30, Third Quarter 2 3/4 2 3 2 1/2
1996 Fourth Quarter 3 3/4 2 3/8 4 2 3/4
The bid prices reflect inter-dealer prices, without retail markup, mark-down
or commission and may not represent actual transactions.
The number of record holders of the Company's common stock as of September 20,
1996, was 1,069.
The Company has never paid cash dividends on its common stock and intends to
utilize current earnings to expand its operations. Therefore, it is not
contemplated that cash dividends will be paid on the Company's common stock in
the foreseeable future.
Item 6.Management's Discussion and Analysis or Plan of Operation.
Overview
Since the reverse acquisition of the Company by Capital First and its
dispositions of Keystone and Proactive Solutions, management has narrowed the
focus of the Company to be a developer of residential properties (single
family and condominiums) and, to a significantly lesser extent, a manufacturer
of specialty building materials. In the next 12-18 months, with respect to
the Company's development activities, it is management's intention to continue
to maintain the Company's market share in the several geographic markets where
the Company currently develops and sells property and to increase its market
share through the planned acquisitions. Management intends to do so by
continuing to aggressively "manufacture" its residential lots and sell them
through its existing wholesale (76 builders on Builders Programs) and retail
resale channels.
At this time, the Company already owns a four to five year supply of land in
Tallahassee. The acquisition of the Flowers Entities will add a four to five
year supply of land in Albany and Thomasville, Georgia. Additionally, through
its investment in Killearn, the Company will share access to a five-year
supply of land in the Henry County submarket of the Atlanta market. Moreover,
because management believes that sufficient demand for housing will continue
in the markets where the Company operates, should the Company encounter
opportunities to acquire undervalued well-positioned land parcels in these
locations, management intends to take advantage of such opportunities.
At the same time management expects to continue to grow its manufacturing
division, which currently includes Decocrete Worldwide and QuinStone, by
increasing revenues through a more focused national and international sales
program currently being developed. Moreover, management would acquire
additional manufacturing facilities if such acquisitions were unusually
advantageous to the Company in terms of market share, compatibility with
existing operations, and improved economies of scale.
Results of Operations
Six Month Period Ended June 30, 1996
Sales for the six months ending June 30, 1996, decreased $2,478,683, or
approximately 19%, to $10,702,130 compared to $13,180,813 (unaudited) for the
six months ending June 30, 1995. This decrease is attributable to staggered
product delivery schedule for calendar year 1996, based upon contract dates
with some of the Company's larger home builders, which are set to close in the
latter half of calendar year 1996. Gross profit for this period remained
fairly stable, however, decreasing only $396,045 from $2,636,163 for the six
months ending June 30, 1995 to $2,240,118, for the six months ending June 30,
1996. This was because cost of sales decreased by $2,082,638 from $10,544,650
(unaudited), for the six months ending June 30, 1995 to $8,462,012 for the six
months ending June 30, 1996.
Selling, general and administrative ("SG&A") expenses increased by $351,048
from $636,394 (unaudited) for the six months ending June 30, 1995, to $987,442
for the six months ending June 30, 1996. This increase is due primarily to
accounting and other professional fees associated with the reverse
acquisition. It is anticipated that professional fees will continue to be
higher than normal in the current fiscal year because of fees incurred with
regard to the proposed acquisitions.
Year ending December 31, 1995
Sales increased by $1,572,664, from $28,398,297 for the year ending December
31, 1994 , to $29,970,961 for the year ending December 31, 1995. This
increase is generally attributable to greater numbers of lots sold in the
various markets operated in by the Company. Cost of goods sold increased by
$3,503,096 from $20,198,446 in 1994 to $23,701,542 in 1995. The increase in
cost of goods sold was due to the relative predominance of low cost land among
the lots sold in 1994. As a result, this also had the effect of reducing
gross profit from $8,199,851 (in 1994) to $6,269,419 (in 1995).
SG&A expenses decreased by $1,899,549, from $3,476,969 in the year ending
December 31, 1994, to $1,577,420 in the year ending December 31, 1995,
primarily due to the fact that the 1994 SG&A expense included a $1.4 million
obligation to pay deferred compensation to James A. Preiss ("Preiss"), a
former 50% shareholder in Capital First. Preiss sold his 50% interest in
Capital First in May 1995.
Net income increased by $1,209,331, from $124,281 for the year ending December
31, 1994, to $1,333,612 for the year ending December 31, 1995. The increase
is primarily attributable to the $1,500,000 reserve included in 1994's results
because of the impairment of the value of the GE Country Club (See Note 3 to
the Consolidated Financial Statements).
Management believes that, on balance, revenues and income should increase in
the year ending June 30, 1997, due to management's renewed focus on operations
following its recent acquisition activity. In addition, based on its current
development schedule, management expects an increase in sales of higher-margin
lots in the Company's subdivisions and an increase in brokerage commission
income generated through the marketing arrangement with Killearn. SG&A
expenses are expected to stabilize following the integration of the
acquisitions.
Inventory and Other Assets
Houses and condominiums in inventory decreased from $1,749,448 on December 31,
1995 to $1,122,075 on June 30, 1996. This $627,373 decrease represents the
sale of nearly all of the remaining condominium units at The Aquanique Ocean
Club in Vero Beach, Florida.
The inventory of developed lots increased by $440,549, from $8,912,142 on
December 31, 1995 to $9,352,691 on June 30, 1996. Although approximately $4.3
million of developed land inventory was sold from eight Tallahassee
subdivisions in the first six months of 1996, because approximately $3.9
million was added to developed lot inventory as a result of the final platting
of the Summerbrooke subdivision, the inventory of developed lots had a net
increase of only $440,549.
Land under development increased by $493,562, to $7,380,720 on June 30, 1996
compared to $6,887,158 on December 31, 1995. This increase was due to a
request from Tallahassee' largest home builder to deliver an additional 98
lots in the Killearn Commons subdivision before the end of calendar year 1996.
As a result, in April 1996, development was started on Phase II of the
Killearn Commons subdivision.
The Company's inventory of (raw) land increased more than two-fold, from
$2,306,893 on December 31, 1995, to $4,636,910 on June 30, 1996. This was
primarily due to the inclusion in the Company's balance sheet of land in the
Piney-Z development. Such land is included in the Company's land inventory as
a result of the Company's acquisition of a controlling interest in the Piney-Z
Partnerships. (See Note 6 to the Consolidated Financial Statements).
The largest part of the increase in non-inventory assets resulted from the
Company's $2,420,216 investment in equity securities, primarily the common
stock of Killearn. Property and equipment increased $352,573, from $985,385
on December 31, 1995 to $1,337,958 on June 30, 1996. The increase is
primarily due to the acquisition of a new 42,000 square foot manufacturing
facility for Decocrete Worldwide in St. Petersburg, Florida, which was
purchased in May 1996 for $380,000.
Investments in real estate ventures increased by $121,391, from $172,563 on
December 31, 1995, to $293,954 on June 30, 1996. This net increase was caused
by two items: a $103,000 decrease caused by the reclassification of the
Company's investment in the Piney-Z Partnerships to investment in raw land,
and a $224,391 increase in the value of the Company's 44% interest in the
Countryside Partnership. The $224,391 increase is attributable to the
Company's $281,936 share of Countryside's net income of $640,763, reduced by
the approximately $58,000 such partnership distributed to the Company.
Liquidity and Capital Resources
Generally, the Company expects to continue to sell lots in order to meet
liquidity needs as it has done in the past. Together with revenues from other
sources, such sales would be expected to generate sufficient cash to meet
liquidity requirements.
Most of the Company's significant liabilities are reflected in its Notes
Payable and arise primarily from debt encumbering the real estate inventory of
the Company. (See Note 7 to the Consolidated Financial Statements). Notes
Payable increased by $2,331,242, from $15,127,200 on December 31, 1995, to
$17,458,442, on June 30, 1996. This increase consists of three significant
elements: approximately $2,500,000 in notes to financial institutions which
are included on the Company's balance sheet due to the consolidation of the
accounts of the Piney-Z Partnerships; $492,325 payable on a line of credit
("margin") account -- such amount was used to finance the Company's April 1996
purchases of 115,700 shares of Killearn's common stock; and, a $497,330
decrease in the Company's notes payable to Killearn from $7,172,473 at
December 31, 1995, to $6,675,143 at June 30, 1996. As of September 30, 1996,
the Company has reduced the balance of the margin account to approximately
$250,000, and expects to pay it off by the end of calendar year 1996.
Accounts payable and accrued expenses increased by $256,931, to $1,107,664 on
June 30, 1996 from $850,733 on December 31, 1995. The bulk of this increase
is attributable to payables acquired in the acquisition of Decocrete
Worldwide, as well as accrued legal fees resulting from the reverse merger in
February 1996.
Customer deposits increased by $584,103, to $740,325 on June 30, 1996, from
$156,222 on December 31, 1995. The increase is primarily due to the
consolidation of the Piney-Z Partnerships on the Company's balance sheet.
This project is approaching the end of the permitting process, and over 60% of
available lots have had deposits placed on them.
The deferred revenue liability decreased by $754,530, to $823,534 at June 30,
1996, from $1,578,064 at December 31, 1995, primarily due to the completion
(and delivery) of approximately half of Golden Eagle Phase VII, a phase in the
higher-end Golden Eagle subdivision.
Shareholder's equity increased by $4,309,515, to $6,368,618 on June 30, 1996,
from $2,059,103 on December 31, 1995. The increase in equity is attributable
(a) to proceeds from the sale of nearly 1,000,000 shares of common stock
pursuant to the exercise of warrants, (b) the reverse acquisition, which added
$1,438,790 to paid-in capital, (c) the investment in Killearn, which caused a
$1,065,000 increase in equity and (d) the acquisition of the additional
one-third interest in the Piney-Z Partnerships, which increased equity by
$675,000.
Item 7.Financial Statements.
The following financial statements are contained in this Item 7:
Report of Independent Accountants
Consolidated Balance Sheets as of June 30, 1996 and December 31, 1995
Consolidated Statements of Operations for the six months ended June 30, 1996
and the years ended December 31, 1995 and 1994
Consolidated Statements of Shareholders' Equity for the six months ended June
30, 1996 and the years ended December 31, 1995 and 1994
Consolidated Statements of Cash Flows for the six months ended June 30, 1996
and the years ended December 31, 1995 and 1994
Notes to the Consolidated Financial Statements
Report of Independent Accountants
We have audited the accompanying consolidated balance sheets of Proactive
Technologies, Inc. and Subsidiaries ("PTEK", formerly Capital First Holdings,
Inc.) as of June 30, 1996 and December 31, 1995, and the related consolidated
statements of operations, changes in shareholders' equity and cash flows for
the six months ended June 30, 1996 and the year ended December 31, 1995.
These financial statements are the responsibility of management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Proactive
Technologies, Inc. and Subsidiaries as of June 30, 1996 and December 31, 1995,
and the consolidated results of their operations and their cash flows for the
periods then ended in conformity with generally accepted accounting
principles.
As discussed in Note 1, on February 12, 1996, Proactive Technologies, Inc.
acquired the stock of Capital First Holdings Inc. ("Capital First") in a
reverse acquisition in which Capital First's sole shareholder acquired voting
control of PTEK. For financial reporting purposes, Capital First is the
accounting acquiror. Accordingly, the historical financial position and
results of operations up to the date of the acquisition are those of Capital
First. The consolidated statements of operations for the six months ended
June 30, 1996 includes the operations of Capital First for the six months and
PTEK for the period from February 12, 1996 through June 30, 1996. Capital
First's stockholders' equity has been retroactively restated for the effect of
the recapitalization associated with the transaction.
Coopers & Lybrand L.L.P.
Atlanta, Georgia
September 6, 1996, except for
note 13, which is dated September 30, 1996.
Report of Independent Certified Accountants
July 20, 1995, except for Note 3, paragraph 2, as to which date is August 18,
1995.
Board of Directors
Capital First Holdings, Inc.
and Subsidiaries
7118 Beech Ridge Trail
Tallahassee, Florida 32312
We have audited the accompanying consolidated statements of operations,
changes in shareholders' equity and cash flows of Capital First Holdings, Inc.
and Subsidiaries for the year ended December 31, 1994. These financial
statements are the responsibility of management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the consolidated statements of
operations, changes in shareholders' equity and cash flows are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the consolidated statements of
operations, changes in shareholders' equity and cash flows. An audit also
includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall presentation of the
consolidated statements of operations, changes in shareholders' equity and
cash flows. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the consolidated statements of operations, changes in
shareholders' equity and cash flows referred to above present fairly, in all
material respects, the consolidated results of operations and cash flows of
Capital First Holdings, Inc. and Subsidiaries for the year ended December 31,
1994, in conformity with generally accepted accounting principles.
LAW, REDD, CRONA & MUNROE, P.A.
Tallahassee, Florida
Proactive Technologies, Inc. and Subsidiaries (Note 1)
Consolidated Balance Sheets
as of June 30, 1996 and December 31, 1995
June 30, December
1996 1995
ASSETS
Real estate Inventories:
Houses and condominiums $1,122,075 $1,749,448
Developed lots 9,352,691 8,912,142
Land under development 7,380,720 6,887,158
Land 4,636,910 2,306,893
-------------- ----------
22,492,396 19,855,641
Cash and cash equivalents, including restricted cash of approximately
$17,923 and $99,345, respectively 153,674 154,563
Certificates of deposit 116,265 138,372
Accounts and notes receivable 1,116,571 265,211
Investments in equity securities 2,420,216
Investments in and advances to real estate joint ventures
293,954 172,563
Property and equipment, net 1,337,958 985,385
Deferred income taxes 283,704 723,312
Other assets 250,991 11,585
-------------- -----------
Total assets $28,465,729 $22,306,632
============= ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Notes payabl e $17,458,442 $15,127,200
Accounts payable and accrued expenses 1,107,664 850,733
Customer deposits 740,325 156,222
Related party payable 250,000
Income taxes payable 1,099,401 1,611,928
Deferred revenue 823,534 1,578,064
Deferred compensation payable 558,273 923,382
------- --------
Total liabilities 22,037,639 20,247,529
Minority interest 59,472
Commitments and contingent liabilities
Shareholders' equity:
Common stock, $.04 par value, 60,000,000 shares authorized,
12,402,168 and 10,739,405 issued and outstanding,
respectively (see Note 1) 496,087 429,576
Additional paid-in capital 5,317,139 171,634
Retained earnings 1,997,757 1,457,893
Net unrealized gain on investments in equity securities
(net of deferred taxes of $34,729) 57,635
Note receivable that may be settled in Company stock
(1,500,000)
---------- ----------
Total shareholders' equity 6,368,618 2,059,103
----------- ---------
Total liabilities and shareholders' equity $28,465,729 $22,306,632
=========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
Proactive Technologies, Inc. and Subsidiaries (Note 1)
Consolidated Statements of Operations
for the six months ended June 30, 1996 and the years ended December 31, 1995
and 1994
June 30, December 31, December 31,
1996 1995 1994
Sales $10,702,130 $29,970,961 $28,398,297
Cost of sales 8,462,012 23,701,542 20,198,446
-------------- -------------- --------------
Gross profit 2,240,118 6,269,419 8,199,851
Selling, general and administrative expenses
(987,442) (1,577,420) (3,476,969)
Equity in earnings of real estate ventures
281,936
Interest expense (705,118) (2,435,605) (2,542,639)
Loss on impairment of Golden Eagle (1,500,000)
Other, net 187,722 480,132 (27,623)
------------ -------------- --------------
Income before income taxes and discontinued
operations 1,017,216 2,736,526 652,620
Income tax expense
(477,352) (980,501) (336,888)
------------ ------------ ------------
Net income before discontinued operations
539,864 1,756,025 315,732
========= ========= =======
Discontinued operations:
Loss from operations of Golden Eagle (less applicable
income tax benefit of $186,996 and $115,360, respectively)
(309,936) (191,451)
Loss on disposal of Golden Eagle (less
applicable income tax benefit of $67,862)
(112,477)
----------- ------------- ------------
Net income $539,864 $1,333,612 $124,281
========= ========== ========
Earnings per share before
discontinued operations
$.05 $.16 $.03
Discontinued operations
-- (.04) (.02)
----------- ------------ ------------
Earnings per share $.05 $.12 $.01
==== ==== =====
Weighted average shares outstanding
11,870,415 10,739,405 10,739,405
The accompanying notes are an integral part of these consolidated financial
statements.
Proactive Technologies, Inc. and Subsidiaries (Note 1)
Consolidated Statements of Shareholders' Equity
as of June 30, 1996 and December 31, 1995 and 1994
Net
Unrealized Gain
Additional On Investments
Common Stock Paid-in Retained In Equity Note
Shares Amount Capital Earnings Securities Receivable Total
Balance at December 31, 1993
$500 $251,000 $349,710 $601,210
Merger with companies under common control
6,000,000 5,500 344,210 (349,710)
Recapitalization due to reverse acquisition
4,739,405 423,576 (423,576) _________ ________ __________ ______
Balance at December 31, 1993, restated
10,739,405 429,576 171,634 601,210
Net Income December 31, 1994
________ ________ ________ 124,281 _______ _________ 124,281
Balance at December 31, 1994, restated
10,739,405 429,576 171,634 124,281 725,491
Net income December 31, 1995
________ ________ ________ 1,333,612 ________ ________ 1,333,612
Balance at December 31, 1995, restated
10,739,405 429,576 171,634 1,457,893 2,059,103
Net income June 30, 1996 539,864 539,864
Reverse acquisition 1,438,790 1,438,790
Purchase of common stock of Killearn Properties, Inc.
454,400 18,176 1,046,824 1,065,000
Acquisition of partnership interest
200,000 8,000 667,000 675,000
Services provided for stock
12,000 480 40,020 40,500
Sale of Keystone Laboratories, Inc. $(1,500,000) (1,500,000)
Exercise of common stock warrants
996,363 39,855 1,952,871 1,992,726
Net change in unrealized gain on investments
______ ________ ________ ________ 57,635 ________ 57,635
Balance at June 30, 1996
12,402,168 $496,087 $5,317,139 $1,997,757 $57,635 $(1,500,000) $6,368,618
The accompanying notes are an integral part of these consolidated financial
statements.Proactive Technologies, Inc. and Subsidiaries (Note 1)
Consolidated Statements of Cash Flows
for the six months ended June 30, 1996 and the years ended December 31, 1995
and 1994
June 30, December 31, December 31,
1996 1995 1994
Cash flows from operating activities:
Net income $539,864 $1,333,612 $124,281
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 43,511 301,385 274,238
Expenses settled through the issuance
of stock 40,500
Loss on real estate ventures 200,534
Loss on disposal of Golden Eagle 180,339
Loss on disposal of property and equipment 24,435 42,909
Loss on impairment of real estate 46,101 535,683
Loss on impairment of Golden Eagle 1,500,000
Unrealized loss on equity trading securities
38,873
Equity in earnings of real estate ventures (281,936)
Minority interest in income of consolidated
subsidiaries (12,528)
Changes in operating assets and liabilities:
Real estate inventories 1,070,145 8,932,661 4,813,729
Deferred income taxes 404,879 325,980(1,049,292)
Accounts and notes receivable (822,153) 163,487 (129,985)
Other assets (128,887) 166,868 651,223
Accounts payable and accrued expenses 95,750 (731,531) 853,602
Customer deposits 584,103 (513,857) 81,089
Deferred compensation payable (225,109) (301,618) 1,225,000
Deferred revenue (754,530) 1,143,422 434,642
Income taxes payable (512,527) 176,524 1,246,747
Net cash provided by operating activities
150,491 11,913,489 10,068,183
Cash flows from investing activities:
Proceeds from disposal of Golden Eagle 3,116,003
Acquisitions of businesses, net of cash acquired
(140,205)
Distributions from real estate joint ventures
57,680 497,752
Investment in real estate ventures (162,562) (503,606)
Purchase of investments in equity securities
(1,117,325)
Purchase of property and equipment (514,664) (245,482) (394,946)
Proceeds from disposal of property, plant and equipment
56,482
Proceeds from maturity of certificates of deposit
22,107
Purchase of certificate of deposit (138,372)
Decrease in due to affiliates (2,526,889) 333,429
_________ __________ _______
Net cash from investing activities (1,692,407) 596,932 (565,123)
Cash flows from financing activities:
Repayment of amounts borrowed (5,281,072)(17,672,939) (21,875,687)
Proceeds from issuance of notes payable 4,829,373 4,927,451 12,618,604
Proceeds from exercise of warrants 1,992,726
Net cash from financing activities 1,541,027(12,745,488) (9,257,083)
Net (decrease) increase in cash and cash equivalents
(889) (235,067) 245,977
Cash and cash equivalents at beginning of period
154,563 389,630 143,653
Cash and cash equivalents at end of period
$153,674 $154,563 $389,630
Supplemental disclosures of cash flow information:
Cash paid during period for:
Interest $1,014,124 $2,302,657 $2,008,000
Taxes $585,000 $549,119 $24,073
The accompanying notes are an integral part of these consolidated financial
statements.
Proactive Technologies, Inc. and Subsidiaries (Note 1)
Notes to the Consolidated Financial Statements
1.Basis of Presentation:
On February 12, 1996, Proactive Technologies, Inc. ("PTEK") acquired 100% of
the outstanding common stock of Capital First Holdings, Inc. ("Capital First")
in a reverse acquisition in which Capital First's sole shareholder acquired
voting control of PTEK. The acquisition was accomplished through the issuance
of approximately 8,559,000 shares of PTEK common stock which represented
approximately 80% of the voting shares of PTEK immediately after the
transaction. For accounting purposes, the acquisition has been treated as a
recapitalization of Capital First with Capital First as the acquiror. The
historical financial statements prior to February 12, 1996 are those of
Capital First and retroactively reflect, as of December 31, 1993, the
recapitalization resulting from the shares issued in the transaction. The
tangible net assets of PTEK have been recorded at their existing cost basis,
except for its only remaining subsidiary, Keystone Laboratories, Inc.
("Keystone"), which is further described below. Capital First is a residential
real estate developer with its principal operations in Tallahassee, Florida.
Upon completion of the reverse acquisition, PTEK determined the operations of
Keystone, a drug testing laboratory, were inconsistent with its long-term
business objectives and decided to sell or otherwise dispose of the business.
As further discussed in Note 3, on June 29, 1996, PTEK reached an agreement to
sell to certain PTEK shareholders the net assets and operations of Keystone in
return for 428,571 shares of PTEK stock (subject to certain adjustments) or,
at the option of the buyer, cash of $1,500,000. Accordingly, the net assets
of Keystone have been valued in the combination with Capital First using this
subsequent sales price.
As a result of the reverse acquisition, Capital First effectively changed its
accounting year end to June 30 from December 31. The consolidated balance
sheet at June 30, 1996 reflects the accounts of Capital First and PTEK. The
consolidated statement of operations for the six months ended June 30, 1996
include the operations of Capital First for the six months and the results of
PTEK for the period from February 12, 1996 through June 30, 1996.
Since the only remaining operations of PTEK at the time of acquisition were
those of its discontinued subsidiary Keystone, pro forma financial information
giving effect to the acquisition has not been presented.
In January 1994, Capital First merged with certain companies under common
control. The merger provided for the exchange of Capital First's common stock
for all of the outstanding stock of the merged companies. This transaction
was accounted for in a manner similar to a pooling of interests and,
accordingly, the consolidated financial statements for the year ended December
31, 1994 include the accounts and operations of the merged companies for the
entire year.
2. Summary of Significant Accounting Policies:
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
PTEK (see Note 1) and its wholly owned and majority owned subsidiaries.
Investments in which the Company does not own a majority interest but exerts
significant but not controlling influence are reported under the equity
method. All significant intercompany balances and transactions have been
eliminated.
Cash and Cash Equivalents.
The Company classifies as cash equivalents any investments which can be
readily converted to cash and have an original maturity of less than three
months. At times cash and cash equivalent balances at a limited number of
banks and financial institutions may exceed insurable amounts. The Company
believes it mitigates its risks by depositing cash or investing in cash
equivalents in major financial institutions.
The Company is required under certain mortgages to maintain cash deposits or
certificates of deposit as collateral. Such balances are reflected either as
restricted cash or certificates of deposit on the accompanying balance sheet.
Real Estate Inventories
Real estate inventories are recorded at the lower of cost or estimated net
realizable value. Expenditures for land development are capitalized and
allocated to development projects by the specific identification method.
Costs are allocated to specific lots based on the ratio of the lot sales price
to the estimated total project sales price. Interest costs and real estate
taxes are capitalized while development is in progress. Total interest
capitalized during the six months ended June 30, 1996 and the year ended
December 31, 1995 was approximately $264,000 and $760,000, respectively.
Property, Plant and Equipment
Property, plant and equipment are stated at cost, less accumulated
depreciation. Depreciation is computed on the straight-line basis over the
assets' estimated useful lives. Expenditures for maintenance and repairs are
expensed as incurred and expenditures for improvements which extend the useful
life or add value to the asset are capitalized.
Sales and disposals of assets are recorded by removing the related cost and
accumulated depreciation amounts with any resulting gain or loss reflected in
income.
The Company records revenue on the sale of real estate properties once the
Company has fulfilled its obligation under the sales contract and is not
obligated to perform significant activities after the sale to earn its profit.
Revenue is only recognized when the collectibility of the sales price is
reasonably assured. When land is sold prior to the completion of development
by the Company, the related revenue and profit is recognized under the
percentage- of-completion method as the development is completed. Generally,
the Company does not provide financing on its sales of property.
Utility rebates due from the City of Tallahassee for water and sewer lines
built by the Company are recognized in income in the year the rebates are
fixed and determinable. During the six months ended June 30, 1996 and the
years ended December 31, 1995 and 1994, rebate income of approximately $9,000,
$506,000 and $530,000, respectively, was recorded as a reduction of cost of
sales.
Equity Securities
The Company accounts for equity securities as provided for under Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities," which requires classification of the securities
as either held-to-maturity, trading securities or available-for-sale and
requires fair value accounting for trading and available-for- sale securities.
Management classifies as trading securities those securities which are bought
and held principally for the purpose of selling them in the near term.
Unrealized holding gains and losses for these securities are included in
earnings. All other equity securities are classified as available-for-sale
with the unrealized holding gains and losses reported as a separate component
of stockholders' equity. If a decline in an available-for-sale security is
judged to be other than temporary, the cost basis of the individual security
is written down to fair value as a new cost basis and the amount of the
write-down is included in earnings.
Securities traded on national security exchanges are valued based on the last
sales price. When market quotations are not readily available, securities are
valued based on bid prices received from broker-dealers in the same or similar
securities or are based on management's estimates. Where the fair value of an
equity security is not readily determinable, the security is reported at cost,
less an estimated impairment reserve, if required.
Gains or losses from sales of securities are recognized on the trade date.
The basis on which cost is determined in computing realized gains and losses
is the specific identification method.
Earnings Per Share
Earnings per share are calculated based on 11,870,415 weighted average shares
of stock outstanding for the six months ended June 30, 1996 and 10,739,405
weighted average shares of stock outstanding for the years ended December 31,
1995 and 1994, respectively. PTEK warrants outstanding, entitling each holder
to acquire one share of common stock for an exercise price of $2.00 per share,
are included in earnings per share computations beginning on February 12,
1996, the date of the reverse acquisition by Capital First. At June 30, 1996
there were approximately 1,180,000 warrants outstanding.
Income Taxes
The Company's income taxes are accounted for in accordance with the liability
method as provided under Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes." Accordingly, deferred income taxes are
recognized for the tax consequences of differences between the financial
statement carrying amounts and the tax bases of existing assets and
liabilities. The measurement of deferred tax assets is reduced, if necessary,
by the amount of any benefits that, based on available evidence, are not
expected to be realized.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities, disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Reclassifications
Certain reclassifications have been made to the December 31, 1995 and 1994
financial statements to conform to the June 30, 1996 presentation.
3. Business Acquisitions & Dispositions:
As described in Note 1, Capital First acquired voting control of PTEK in a
reverse acquisition on February 12, 1996. At that time, the newly combined
Company determined the operations of Keystone were inconsistent with its
long-term business objectives and reached a decision to sell or otherwise
dispose of Keystone. On June 29, 1996 the Company entered into an agreement
to sell the stock of Keystone to certain members of Keystone management that
were also shareholders of PTEK. The purchase price under the agreement was
set at $1,500,000 which is payable in either stock, using an assigned value of
$3.50 per share or, at the option of the buyer, cash. The purchase price is
payable, $250,000, due at closing and the remainder due on July 31, 1997
bearing interest at the rate of 8% per annum. Such interest may also be
settled in PTEK stock. The $250,000 payment was made in July 1996 in the form
of approximately 69,000 shares of PTEK stock, and the Company anticipates that
it will receive stock for the remaining purchase price and interest.
Accordingly, the Company has recorded the note receivable as a reduction to
equity.
Keystone's net earnings for the period from February 12, 1996 to June 30, 1996
amounted to approximately $124,000. PTEK acts as a guarantor for a note
payable of Keystone with a balance of approximately $125,000 as of June 30,
1996. The note matures in June 2001. Management of PTEK believes Keystone
will honor its obligations under the note.
In a prior year, Capital First acquired a golf and country club ("Golden
Eagle") in connection with its purchase of contiguous land which it planned to
develop. The Company operated the country club in order to ensure the
retention of value and maintenance of certain standards to support the value
in the surrounding property. On September 27, 1995, the Company sold the
country club to an unrelated party for aggregate proceeds of approximately
$3.1 million. The Company had previously provided a reserve against the
valuation of the property of $1.5 million and the net loss realized during
1995, after giving effect to the provision previously recorded, was
approximately $180,000. Revenues of Golden Eagle during 1995 amounted to
approximately $2 million.
The operating results of Golden Eagle have been presented as a discontinued
operation for the period in 1995 up to the date sold and the full year 1994
and the resulting loss on disposal has been presented as the loss on disposal
of discontinued operation in the accompanying financial statements.
Effective February 10, 1996 Decocrete Worldwide, Inc. ("Decocrete"), a
newly-formed subsidiary of PTEK, operating under the direction of Capital
First, acquired the net assets of Decocrete International, Inc., a
manufacturer of decorative concrete with a plant located in Tampa, Florida,
for an aggregate purchase price of $72,000 in cash and 20% of the outstanding
shares of Decocrete. The acquisition has been accounted for under the
purchase method of accounting. Identifiable assets acquired approximated the
liabilities assumed; accordingly, the entire purchase price has been
attributed to goodwill. The goodwill of $144,000 is being amortized on a
straight-line basis over 20 years. The financial position and operating
results of Decocrete are included in the accompanying consolidated financial
statements from the date of acquisition. Such results and financial position
are not significant to the Company.
4.Property and Equipment:
Property and equipment consists of the following:
June 30, December 31,
1996 1995
Land and land improvements $253,267 $253,267
Buildings and building improvements 793,796 403,426
Vehicles 156,420 277,089
Furniture, fixtures and equipment 320,889 205,538
1,524,372 1,139,320
Accumulated depreciation (186,414) (153,935)
$ 1,337,958 $ 985,385
5.Investments in Equity Securities:
Prior to its reverse acquisition in February 1996, PTEK had invested certain
idle funds in equity securities. The Company continues to hold these
securities but intends to sell them in the near term.
In addition, the Company has made investments in Killearn Properties, Inc.
("Killearn") and Buckhead Brewery and Grill, Inc. ("Buckhead"). Killearn is
the real estate development company from which Capital First acquired its
Tallahassee development. Killearn's primary operations include the
development of residential property surrounding a golf course in Henry County,
Georgia. At June 30, 1996, PTEK's aggregate holdings in Killearn were
approximately 229,000 shares, representing approximately 16% ownership of that
company. Buckhead owns and operates a restaurant in Tallahassee, Florida. As
of June 30, 1996, PTEK holds a 10% ownership interest in this company. The
Company has classified these investments as available-for-sale.
The cost basis and aggregate fair value of equity available-for-sale
securities are as follows at June 30, 1996:
Cost basis $2,182,325
Gross unrealized holding gains 92,364
Aggregate fair value $2,274,689
At June 30, 1996, the Company had securities classified as trading with a fair
value of approximately $145,527. An unrealized net holding loss of
approximately $39,000 related to these securities was recognized in the
consolidated statement of operations for the six months ended June 30, 1996.
No sales activity occurred during the period in either available-for-sale or
trading securities.
6. Investments In Real Estate Ventures:
The Company has certain investments in real estate partnerships formed to
manage specific development projects. The investment balances at June 30,
1996 and December 31, 1995 consist of the following:
June 30, December 31,
1996 1995
Piney-Z, Ltd. and Apalachee
Partners, Ltd.,
33 1/3% interest at December 31, 1995 $103,000
Countryside Partnership, 44% interest $293,954 69,563
_______ _______
$293,954 $172,563
======== ========
Piney-Z, Ltd. and Apalachee Partners, Ltd. (the "Partnerships") were formed on
October 26, 1995 and had no sales activity through June 30, 1996. On May 17,
1996, PTEK purchased an additional 33 1/3% limited partnership interest in
Piney-Z, Ltd. and Apalachee Partners, Ltd. such that its total ownership
interest at June 30, 1996 amounted to 66 2/3%. Accordingly, the Partnerships
have been consolidated in the June 30, 1996 financial statements. The Company
paid 200,000 shares of newly issued PTEK stock and $25,000 for that additional
33 1/3% interest in the partnerships. The stock issued was valued at
$675,000, based on the market value of the stock at the time of the
acquisition, and the net assets were stepped-up to reflect the additional
cost.
The Company is a general partner in Countryside Partnerships and has a
significant but not controlling interest. Day-to-day operations are managed
by the other partner with major transactions, such as the acquisition,
disposition or financing of property requiring joint approval. As general
partner, the Company is liable for the debt and obligations of the
partnership. The Company earned commission revenue of approximately $78,000
in 1996 from Countryside Partnerships.
Summarized financial information for Countryside Partnership as of and for the
six months ending June 30, 1996 and as of and for the year ended December 31,
1995 is as follows:
June 30, December 31,
1996 1995
(Unaudited)
Real estate $602,805 $1,549,740
Other assets 154,988 4,339
-------- ----------
Total assets $757,793 $1,554,079
======== ==========
Mortgage debt $1,186,351
Other liabilities $11,300 204,318
------- -------
11,300 1,390,669
Partnership equity 746,493 163,410
======= =========
$757,793 $1,554,079
======== ==========
Sales $1,570,800
Cost of sales 1,049,012
----------
Gross profit 521,788
Other income and expenses, net 118,975 $27,007
---------- -----------
Net income $640,763 $27,007
========== ==========
PTEK received partnership distributions of approximately $58,000 during 1996.
During 1995 Northampton Partners, a partnership in which the Company held a
50% interest, completed the development and sale of its land, settled all
remaining liabilities and distributed its equity to the Partners. The Company
received net proceeds of approximately $498,000 and recorded a loss of
approximately $201,000. The loss is included in other, net on the statement
of operations. The property owned by Northampton partners was under
development in 1994, and, accordingly, there were no revenues or expenses
during that period.
7. Mortgage Loans Payable:
Mortgage debt consisted of the following:
June 30, December 31,
1996 1995
Notes payable to Killearn with interest rates
ranging from 7% to 10%. Interest is paid either quarterly
or semi-annually. The notes were in default as certain
scheduled principal payments had not been made;
accordingly, on December 29, 1995, the agreement was
modified to waive any existing default and modify the
payment terms such that principal and interest payments
are due when lots of the related collateral are released
for sale. These notes are collateralized by portions of
the developed lots, land under development and land.
$6,675,143 $7,172,473
Notes payable to financial institutions with interest
rates ranging from 8.25% to 10.5% with several of the
notes having variable interest rates at prime plus 1% or
1 1/2%. Interest is due monthly and principal is due in
balloon payments at varying dates through 1998. The
notes are collateralized by portions of the developed lots,
land under development and land. 8,724,926 6,270,318
Notes payable to financial institutions with interest rates
ranging from 7.25% to 9.75%. Payment terms differ
with some paying interest monthly with balloon
payments in 1997 and others paying principal and
interest monthly with maturity dates from 2013 to 2025.
The notes are collateralized by portions of the
houses and condominiums. 809,882 1,151,513
$500,000 margin loan with an
investment banking firm. Interest due monthly
at rate of 8.375%. Principal due on demand.
Collateralized by portions of the equity
available-for-sale securities. 492,325
Other notes payable 756,166 532,896
-------- -------
$17,458,442 $15,127,200
=========== ===========
All indebtedness which is collateralized by real property include contingent
principal and interest payments due when lots of the related collateral are
released for sale. Substantially all of the notes are guaranteed by a major
stockholder.
The Company has approximately $1.1 million available under existing loan
arrangements for use in completing development of certain of its properties.
The notes payable to Killearn are collateralized by the stock of Capital
First.
Maturities of the notes payable, some of which are dependent on the sale of
lots, are as follows at June 30, 1996:
Year Amount
1997 $13,825,758
1998 1,221,856
1999 2,007,000
2000 7,000
2001 7,000
2002 and thereafter 389,828
---------
Total $17,458,442
============
Based on the relatively short maturities of fixed rate debt, and the market
rates of interest such debt bears, management believes the aggregate carrying
amount of its fixed rate debt approximates such debt's fair value. Interest
rates on variable rate debt fluctuate with market conditions. Accordingly,
such carrying amount also approximates fair value.
8. Income Taxes:
The components of income tax expense attributable to continuing operations are
as follows:
Six Months Ended June 30, 1996
Federal State Total
Current $158,545 $28,013 $186,558
Deferred 248,258 42,536 290,794
$406,803 $70,549 $477,352
Year Ended December 31, 1995
Federal State Total
Current $558,856 $95,665 $654,521
Deferred 394,665 (68,685) 325,980
$953,521 $26,980 $980,501
YearEnded December 31, 1994
Federal State Total
Current $1,217,560 $168,620 $1,386,180
Deferred (1,021,792) (27,500) (1,049,292)
$195,768 $141,120 $336,888
Income taxes payable at June 30, 1996 includes taxes payable from 1994 and
1995 which have not been paid.
Total income tax expense attributable to continuing operations differs from
the amount computed by applying the U.S. federal statutory tax rate to pretax
income from continuing operations in 1996 primarily due to the effect of state
taxes and penalties and interest charged on delinquent balances.
The components of the net deferred tax asset are as follows:
June 30, December 31,
1996 1995
Real estate inventories $(189,953) $(217,232)
Deferred compensation 209,911 347,192
Deferred revenue 309,649 593,352
Investments in equity securities (34,729) -
Other (11,174) -
$283,704 $723,312
The valuation allowance at December 31, 1994 of approximately $138,000 was
recognized into income during 1995 due to the profitable operations of the
Company.
Prior to the reverse acquisition, PTEK incurred significant net operating
losses ("NOL's"). Due to the substantial limitations placed on the
utilization of such NOL's following a change in control, no related deferred
tax asset has been recorded. The Company will seek to maximize any available
benefit.
9. Commitments and Contingencies:
The Company is obligated under a purchase agreement with Killearn to purchase
certain lots for a set price per lot. As the Company locates a third party
buyer for each lot, the Company purchases the lot from Killearn and
subsequently sells it to the third party. During the six months ended June
30, 1996 and the years ended December 31, 1995 and 1994, the Company purchased
6, 18 and 33 lots, respectively, from Killearn for approximately $172,000,
$566,000 and $1,000,000, respectively, and earned revenues of approximately
$174,000, $628,000 and $1,200,000, respectively. As of June 30, 1996, 15 lots
with an approximate purchase price of $470,000 remained under this commitment.
10. Related Party Transactions:
In April 1996, the Company purchased land from an entity owned by PTEK's
largest shareholder for a purchase price of $475,000 (which approximates the
shareholder's basis in the property). In connection with this purchase, a
note payable of $225,000 was assumed by PTEK, and PTEK entered into a note
payable agreement with the seller for the remaining $250,000. The assumed
note bears interest at a rate of approximately 16% and matures October 1996.
The seller financed portion represents a short-term, non-interest bearing note
due October 31, 1996 and is classified as a related party payable on the June
30, 1996 balance sheet.
In March 1995, the sole stockholder of Capital First acquired from Capital
First's then other stockholder, the remaining 50% of the outstanding stock of
Capital First.
The Company has a compensation agreement with the former stockholder which
resulted in the Company agreeing to pay compensation to the former stockholder
of $1.4 million for services rendered. The $1.4 million is payable in five
equal, monthly payments of $10,000 made throughout 1995 and in $4,000 payments
for each lot sale made in specified developments. During the six months ended
June 30, 1996 and the year ended December 31, 1995, a total of $423,000 and
$412,000, respectively, was paid under this compensation agreement. Based on
an imputed interest rate of 10%, total interest incurred during the six months
ended June 30, 1996 and the year ended December 31, 1995 amounted to
approximately $58,000 and $133,000, respectively, and the remaining principal
balance at June 30, 1996 and December 31, 1995 equaled approximately $516,000
and $882,000, respectively, and is included in deferred compensation payable.
Additionally, as part of the compensation agreement, a payable of $65,000 was
established for utility rebates to be passed through to the former
stockholder. Approximately $24,000 of these rebates were paid during 1995.
No payments were made in 1996. The remaining payable of approximately $41,000
is included in deferred compensation payable.
From time to time the Company makes advances and repayments of loans to its
President which are repaid either through cash payments or increases in
compensation expense.
During 1994, Capital First sold lots to related parties amounting to total
revenues of approximately $2,350,000.
11. Supplemental Cash Flow Information for Noncash Investing and Financing
Activities:
In April 1996, 12,000 shares of common stock were issued to two creditors as
payment for services rendered. A $40,500 expense was recorded in connection
with this transaction.
In May 1996, as previously discussed in Note 6, partnership shares valued at
$675,000 were purchased with the issuance of 200,000 shares of common stock.
In June 1996, the Company purchased 113,600 shares of Killearn common stock in
exchange for 454,400 shares of PTEK common stock.
During 1996, a fixed asset with a net book value of approximately $140,000 was
traded to obtain the release of a $140,000 liability included in deferred
compensation payable in 1995.
In April 1996, as previously discussed in Note 10, the Company purchased land
for $475,000 through the issuance of a note of $250,000 and the assumption of
$225,000 of existing debt.
12. Concentration of Risk:
The Company currently utilizes one vendor in the development of all of its
land inventories. Although there are a limited number of development
companies in the area, management believes that other suppliers could provide
similar services on comparable terms. A change in vendors, however, could
cause a delay in development and a possible loss of sales, which would
adversely affect operating results.
13. Subsequent Events:
During May 1996, PTEK proposed a transaction with Killearn where Killearn
would exchange certain assets (consisting of the golf course and country club,
a newly constructed inn and certain joint venture interests) to Killearn's
Chairman of the Board and Chief Executive Officer, for his approximately 42%
effective interest in Killearn. In connection with this proposed transaction,
PTEK would be required to loan Killearn $2 million. During August 1996, PTEK
acquired approximately 85,950 additional shares of Killearn stock, increasing
its ownership interest in Killearn to approximately 22%. On July 29, 1996,
PTEK proposed to Killearn's board of directors that PTEK be retained to
provide sales personnel and sales training techniques in order to improve the
sales of residential lots. In addition, PTEK proposed the board of directors
be expanded to include two representatives of the Company. On July 31, 1996,
Killearn's board of directors approved the transaction and the PTEK proposals,
and an agreement was entered into on August 2, 1996. The split-off
transaction was voted upon and approved at Killearn's shareholders' meeting
held on September 30, 1996. After the completion of the proposed split-off,
PTEK's holdings in Killearn will be increased to approximately 35%.
On August 12 and 13, 1996 the Company reached agreements to acquire the stock
of Flowers Properties, Inc., Highland Properties Construction Co., Inc. and
Barrier Dunes Development Corporation in exchange for approximately 2,565,000
shares of PTEK common stock with a stated value of $3.50 per share. Under the
agreement, the number of shares issued may be adjusted in the event the quoted
market price of the shares at December 31, 1996 is less than $3.50 per share.
The Company is required to issue such additional shares as necessary for the
aggregate value of the total shares to approximate the original purchase
price. The purchased corporations' operations principally consist of land
development in Middle and South Georgia. This acquisition will be accounted
under the purchase method of accounting.
In September 1996, PTEK entered into a stock exchange agreement with
QuinStone, Inc. ("QuinStone") to exchange 750,000 shares of PTEK common stock
for 82% of the outstanding shares of QuinStone. In addition, the Company has
agreed to file a registration statement within the next year in order to
register the shares issued under the agreement and is contingently obligated
to issue an additional 225,000 shares should this registration not occur.
QuinStone is a manufacturer of synthetic stone and marble fixtures with a
plant located in Quincy, Florida. This acquisition will be accounted for
under the purchase method of accounting.
14. Statement of Operations for the Six Months Ended June 30, 1995
(Unaudited):
Summarized results of operations for the comparable six months ending June 30,
1995 were as follows:
(Unaudited)
Sales $13,180,813
Cost of sales 10,544,650
Gross profit 2,636,163
Selling, general and administrative expenses
(636,394)
Interest expense (737,369)
Other, net 541,314
Income before income taxes and discontinued operations
1,803,714
Income tax expense (645,729)
Net income before discontinued operations 1,157,985
Discontinued operations:
Loss from operations of Golden Eagle (less
applicable income tax benefit of $124,564 (206,824)
Net income $951,161
Earnings per share before discontinued operations
$.11
Discontinued Operations ( .02)
________
Earnings Per Share $ .09
Weighted Number of Shares Outstanding 10,739,405
Item 8. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
As reported on Form 8-K filed on October 1, 1996, on September 27, 1996, the
Company formally dismissed its former accountant, Guest & Company, P.C.. This
dismissal was due to the change of the Company's management and the relocation
of the Company's headquarters from Tulsa, Oklahoma to Tallahassee, Florida.
The report of Guest & Company, P.C. did not contain an adverse opinion or
disclaimer of opinion and was not modified. On June 1, 1996, the Company had
engaged Coopers & Lybrand L.L.C. as its new accountant.
Item 9. Directors, Executive Officers,
Promoters and Control Persons; Compliance with Section 16(a) of the Exchange
Act.
The following table sets forth the names, ages and current positions with the
Company held by Directors, Executive Officers and Significant Employees,
together with the year such positions were assumed. There is no immediate
family relationship between or among any of the Directors, Executive Officers
or Significant Employees, and the Company is not aware of any arrangement or
understanding between any Director or Executive Officer and any other person
pursuant to which he was elected to his current position.
Position
Name Age Position Since
Mark A. Conner 30 Chairman of the Board, President
and Chief Executive Officer 1996
Robert E. Maloney, Jr. 32 Director
Vice President-Corporate
Counsel 1996
H. Russell Spivey 37 Vice President-Chief
Financial Officer 1996
Mark A. Conner, age 30, has been President of the Company since February 1996,
and President of Capital First since its incorporation in 1994. Mr. Conner
earned a B.S. in Finance, with honors, from Florida State University in 1987.
Mr. Conner started his own real estate company in October 1987, Conner, White
& Associates, Inc., which focused on the development of affordable housing for
first time and mid-priced home buyers. This approach proved to be successful,
resulting by 1992 in the development and marketing of 14 communities.
Robert E. Maloney, Jr., age 32, has been Corporate Counsel to the Company
since February 1996. He earned a B.S. with high honors (including Phi Beta
Kappa) from Ohio Wesleyan University in 1986. He graduated from Wake Forest
University School of Law in 1989, and served as the Executive Editor of Wake
Forest Law Review in 1988-89. Mr. Maloney was with the firm of Fee, Bryan &
Koblegard, P.A. in Fort Pierce, Florida from 1989 to 1995, where he
specialized in litigation matters. In 1993 and 1994, Mr. Maloney served as
counsel to Mr. Conner on a number of Capital First's real estate developments.
He is licensed to practice law in the states of Florida, Massachusetts, and
Connecticut and is a member of the Florida Trial Attorneys and the American
Bar Association.
H. Russell Spivey, age 37, joined the Company in June 1996 as Vice
President-Chief Financial Officer. Prior to joining Capital First, Mr. Spivey
was President of Standard Packaging, Inc. from 1992 to 1996, a manufacturer of
plastic closures for the beverage industry. From 1987 to 1992, Mr. Spivey was
employed in the packaging industry. Mr. Spivey received an M.B.A. in Finance
from Georgia State University, and a B.S. in Management from Valdosta State
University.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended, and
regulations of the SEC thereunder require the Company's executive officers and
directors and persons who own more than 10% of the Company's common stock, as
well as certain affiliates of such persons, to file initial reports of
ownership and reports of changes in ownership with the SEC. Executive
officers, directors and persons owning more than 10% of the Company's common
stock are required to furnish the Company with copies of all Section 16(a)
forms they file. Based solely on its review of the copies of such forms
received by it and written representations that no other reports were required
for those persons, the Company believes that during the fiscal year ended June
30, 1996, its executive officers, directors and owners of more than 10% of its
common stock complied with all filing requirements.
Item 10. Executive Compensation.
SUMMARY COMPENSATION TABLE
(Year ended June 30, 1996)
Name and Long-term Other Annual
Principal Position Salary Bonus Compensation Compensation
Mark A. Conner (1)
Chairman of the Board,
President and Chief
Executive Officer $61,200 -- 0 -- -- 0 -- 208,028 (2)
(1) Before February 12, 1996, Conner was employed by Capital First, where he
was the sole shareholder. As a result, information regarding compensation
for fiscal years prior to the fiscal year ending June 30, 1996, is not
considered meaningful for purposes hereof.
(2) Includes $92,556 in debt service payments made by Capital First and the
Company on behalf of Conner and $115,472 in other personal expenses paid by
Capital First and the Company on behalf of Conner.
Item 11. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth information, as of June 30, 1996, concerning
shares of Common Stock of the Company beneficially owned by ea ch beneficial
owner of more than 5% of the Company's common stock and by each director and
officer and by all directors and officers as a group. Unless expressly
indicated otherwise, each stockholder exercises sole voting and investment
power with respect to the shares beneficially owned.
Name and Address Number of Shares Percent
of Beneficial Owner Beneficially Owned of Class
Mark A. Conner 8,559,077 70.1% (1)
7118 Beech Ridge Trail
Tallahassee, Florida 32312
All Directors and Officers
as a Group 8,559,077 70.1% (1)
(1) Number of outstanding shares used to calculate percentage computed as
described in the preceding paragraph: 12,202,168.
Item 12. Certain Relationships and Related Transactions.
In December 1995, the Company's President, Conner, contributed to Capital
First, his 33 1/3% limited partnership interests in Piney-Z, Ltd. and
Apalachee Partners, Ltd. In April 1996, the Company purchased land in Vero
Beach, Florida from an entity owned by Conner for a purchase price of
$475,000. (See Note 10 to the Consolidated Financial Statements). During the
twelve months ending June 30, 1996, the Company made $92,556 in debt service
payments with respect to loans on which Conner was primarily liable. Such
amounts were included in Conner's compensation.
PART IV
Item 13. Exhibits List and Reports on Form 8-K.
(a) Reports on Form 8-K - During the Quarter ended June 30, 1996, the Company
filed no Form 8-K's. However, subsequent to the end of the quarter, on
October 1, 1996, the Company filed a Form 8-K regarding its change of
certifying accountants.
(b) Exhibits.
Page
SEC Exhibit No. Type of Exhibit Number
3 Articles of Incorporation and Bylaws - N/A
Certificate of Incorporation of the Company is incorporated herein by
reference to the 1991 Annual Report on Form 10-K, Exhibit 3.1, of the
Registrant; Amendment of the Certificate of Incorporation of the Company is
incorporated herein by reference to the 1991 Annual Report on Form 10-K,
Exhibit 3.2, of the Registrant; Amendment of the Certificate of Incorporation
of the Company is incorporated herein by reference to Item 5 in Form 10-QSB
for the period ended December 31, 1994; Bylaws of the Company are incorporated
herein by reference in to the 1991 Annual Report on Form 10-K, Exhibit 3.3.
4.1 Registrant's Equity Holders' Plan of N/A
Reorganization dated November 21, 1995, is incorporated herein by reference to
Form 8-K filed on January 11, 1996.
9 Voting Trust Agreement N/A
10 Material Contracts N/A
10.1 Stock Exchange Agreement between ____
Registrant and Clark Capital Corporation dated June 29, 1996, regarding the
sale of Registrant's common stock in Keystone Laboratories, Inc. and
Promissory Note.
10.2 Stock Exchange Agreement by and among ____
Registrant, Flowers Properties, Inc., Langdon S. Flowers, Sr., Langdon S.
Flowers, Jr., Margaret Flowers Rich, Elizabeth Flowers McKinney, John Howard
Flowers and Dorothy Flowers Swinson, dated August 12, 1996.
10.3 Stock Exchange Agreement by and among ____
Registrant, Highland Properties Construction Company, Inc., Langdon S.
Flowers, Jr. and George McIntosh, dated August 13, 1996.
10.4 Stock Exchange Agreement by and among ____
Registrant, Barrier Dunes Development Corporation, Langdon S. Flowers, Jr. and
Langdon S. Flowers, Sr., dated August 12, 1996.
10.5 Stock Exchange Agreement by and among ____
Registrant, James H. Dahl and Rock Creek Partners, Ltd., regarding
Registrant's purchase of common stock of QuinStone Inc. dated September 16,
1996.
11 Statement Regarding Computation of Per Share N/A
Earnings
13 Annual Report to Security Holders N/A
16 Letter on Change in Certifying Accountant N/A
is incorporated herein by reference to Form 8-K
filed on September 30, 1996.
18 Letter on Change in Accounting Principles N/A
19 Previously Unfiled Documents N/A
21 Subsidiaries of the Registrant ____
22 Published Report Regarding Matters Submitted N/A
to Vote of Security Holders
23 Consents of Experts and Counsel N/A
24 Power of Attorney N/A
27 Financial Data Schedule ____
99 Additional Exhibits N/A
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
PROACTIVE TECHNOLOGIES, INC.
Date: October 11, 1996
By: /s/ Mark A. Conner
Mark A. Conner
Chairman of the Board and President
In accordance with the requirements of the Exchange Act, this report has been
signed by the following persons on behalf of the Registrant and in the
capacities and on the dates indicated.
Date: October 11, 1996
/s/ Mark A.Conner
Mark A. Conner
Chairman of the Board, President and
Chief Executive Officer
Date: October 11, 1996
/s/ Robert E. Maloney, Jr.
Robert E. Maloney, Jr.
Director
Vice President-Corporate Counsel
Date: October 11, 1996
/s/ H. Russell Spivey
H. Russell Spivey
Vice President-Chief Financial Officer
INDEX TO EXHIBITS
Exhibit Sequential
Number Description Page Number
EXHIBIT 10.1
EXHIBIT 10.2
EXHIBIT 10.3
EXHIBIT 10.4
EXHIBIT 10.5
EXHIBIT 21
EXHIBIT 27
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1996
<PERIOD-END> JUN-30-1996
<CASH> 269,939
<SECURITIES> 2,420,216
<RECEIVABLES> 1,116,571
<ALLOWANCES> 0
<INVENTORY> 22,492,396
<CURRENT-ASSETS> 26,299,122
<PP&E> 1,524,372
<DEPRECIATION> (186,414)
<TOTAL-ASSETS> 28,465,729
<CURRENT-LIABILITIES> 14,847,989
<BONDS> 17,458,422
0
0
<COMMON> 496,087
<OTHER-SE> 7,314,714
<TOTAL-LIABILITY-AND-EQUITY> 28,465,729
<SALES> 10,702,130
<TOTAL-REVENUES> 10,702,130
<CGS> 8,462,012
<TOTAL-COSTS> 9,449,454
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 705,118
<INCOME-PRETAX> 1,017,216
<INCOME-TAX> 477,352
<INCOME-CONTINUING> 462,492
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 539,864
<EPS-PRIMARY> .05
<EPS-DILUTED> 0
</TABLE>
EXHIBIT 21
Form 10-KSB for fiscal year ended June 30, 1996
Proactive Technologies, Inc.
List of Subsidiaries
% owned State of Incorporation
Proactive
Technologies, Inc. Registrant Delaware
Capital First Holdings, Inc. 100% Florida
Decocrete Worldwide,
Inc. (acquired 80%
in February 1996;
15% in September 1996) 95% Florida
Quinstone, Inc.
(acquired interest in September 1996) 82% Florida
STOCK EXCHANGE AGREEMENT
Keystone Laboratories, Inc.
This Stock Exchange Agreement (Agreement) is entered into this 29th day of
June, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as PTEK), and CLARK CAPITAL CORPORATION, an Oklahoma
Corporation, (hereinafter collectively referred to as Clark).
WHEREAS, PTEK is the owner of record of one hundred per cent (100%) of the
issued and outstanding shares of the Voting Common Stock (the Shares) of
Keystone Laboratories, Inc. (the Company) and PTEK's desire to exchange all of
their issued and outstanding shares of the Company for voting stock of PTEK,
and PTEK wishes to acquire the Clarks' outstanding shares of PTEK as follows:
428,571 shares @ $3.50 per share
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
EXCHANGE OF THE SHARES
1.1 Exchange. Subject to the terms and conditions hereof, at the Closing (as
defined below), Clark agrees to assign, transfer, convey and deliver to PTEK,
and PTEK agrees to acquire from Clark, 428,571 shares of PTEK voting common
stock in exchange for all 3,000 shares of voting common stock of Keystone
Laboratories, Inc. (the Exchange Shares).
1.2 Closing. The exchange shall be consummated at the Closing to take place
at the office of the PTEK on or before June 30, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Exchange Shares. The individual disbursement of Exchange Shares
shall be issued as follows:
Clark Capital Corp % shares
Richard T. Clark, Jr. % shares
Joel C. Holt % shares
G. David Gordon % shares
% shares
% shares
TOTAL 100% 3,000
The PTEK Shares shall be registered and freely tradable at closing.
1.4 Other Agreements. Clark, and its assigns and agents as set forth
in Paragraph 1.3 above, agree to assign all of the shares of stock it is
receiving of Keystone Laboratories, Inc. To PTEK until full payment of the
Purchase Pirce is made under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of PTEK. PTEK represents and
warrants to Clark as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of the
Company consists of Three Thousand (3,000) Shares of $0.00 par value Common
Stock, of which ( ) shares have been issued and are outstanding.
The Shares have been duly authorized, validly issued, are fully paid are non
assessable and have no liability attaching to the ownership thereof. To the
best of PTEK's knowledge, the Company does not have any outstanding rights,
call, options, which obligate it to issue any of its shares of Capital Stock,
whether authorized or not. To the best of PTEK's knowledge, the Company is
not bound by any agreement, contract, arrangement or understanding, whether
oral or written, giving any person or entity the right to participate, share
in, or in any way, obligating the Company to distribute any portion of its
income, profits or assets.
C. Company's Financial Statements. To the knowledge of the PTEK, the
Company's statements, dated June 30, 1996, are complete, were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods and fairly present the financial position of the
Company as of June 30, 1996. Except as disclosed in the financial statements,
and special knowledge which may be known to Clark, or any of its principal or
agents, PTEK is not aware of any material liabilities for which the Company is
liable or will become liable in the future, other than liabilities arising in
the ordinary course.
D. Taxes. To the knowledge of PTEK, the Company has filed all taxes,
state, federal, and local, as well as any other reports and returns which were
required to be filed and there exists a substantial basis in law or fact for
any positions taken in such reports. To the best of the knowledge of PTEK,
there are no back taxes, penalties or interest due at this time. Clark agrees
to assume any back taxes which may exist.
E. Books and Records. To the knowledge of PTEK, the Company's books
and records are complete and correct and have been maintained according to
good business practices and accurately reflect in all material respects
reflects the business, financial condition and results of the operation of the
Company as set forth in the Company's Financial statements.
F. Insurance. To the knowledge of PTEK, the Company has the
following insurance associated with its policies of general liability, fire
and extended coverage, worker's compensation, products liability, property and
indemnity and performance bonds and has delivered copies of same to Clark
prior to execution upon request by Clark, and is not in default with any
provisions thereof, and said insurance is sufficient for compliance by Company
with all requirements of law and all agreements affecting Company. These
coverages will remain in full force and effect through Closing of this
transaction and will not be affected by, terminate or lapse by reason of the
transactions contemplated in this Agreement.
G. Material Agreements. To the knowledge of PTEK, all material
agreements, employment agreements, contracts or other material arrangement
with any officer, director or shareholder of the Company or any relative of
such person, or any agreements which would have a material affect on the
business, financial condition, results of operation, assets, liabilities, or
prospects of the Company have been disclosed to Clark prior to execution of
this Agreement.
H. Permits. To the knowledge of PTEK, all necessary permits, licenses,
approvals, or other authorizations that are materially necessary for the
conduct of its business will be shown to the Clark prior to execution, all of
which are still in full force and effect and will continue to be owned by the
Company after Closing.
I. Compliance. To the knowledge of the PTEK, the Company is not in
violation of any federal, state or local law, ordinance or rule or regulation
applicable to its business, nor has it received any actual or threatened
complaint, notice or citation of violation from any governmental authority.
Further, to the knowledge of the PTEK, the Company is in compliance with all
applicable pollution control and environmental laws, rules and regulations in
all material respects, and has no environmental licenses, permits or
authorizations.
J. Litigation. To the knowledge of PTEK, there are no actions,
suits, claims, complaints, proceedings pending or threatened against the
Company or the Clark, or either of them, at law or in equity, and there are
no facts which would provide a legitimate basis for any such action, suit or
proceeding, which if decided against the Company, would have a materially
adverse effect on the Company. Further, to the knowledge of the PTEK, there
are no outstanding orders, judgments or decrees of any person or governmental
authority which specifically affect the Company or any of its assets.
K. Validity of existing contracts. To the knowledge of PTEK, all
material contracts, agreements. Leases and licenses, which the Company is a
party or by which any of its properties or assets are bound or affected, are
valid and in full force and effect; and to the knowledge of PTEK, no breach or
default exists, or upon giving timely notice, would exist on the part of the
Company or of any other party.
L. No material changes. Since June 30, 1996, there have been no actual
or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects.
M. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of PTEK's conduct.
N. Full Disclosure. To the knowledge of the PTEK, all statements of
PTEK contained in this Agreement and other documentation delivered on behalf
of PTEK to PTEK are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein no
misleading in light of the circumstances under which they were made.There are
no facts known to the Clark, which could have a materially adverse affect on
the business, financial condition, results of operation, assets, liabilities,
or prospects of the Company, which have not been disclosed to PTEK in this
Agreement or its exhibits, or which are not known by Clark or any of its
principals or agents.
O. Title to the Shares. At Closing, PTEK shall own of record and
beneficially the number of shares listed in Paragraph 1.3 of the Company, free
and clear of all encumbrances, liens, pledges, claims, options, charges and
assessments of any nature whatsoever, with full right and authority to
transfer said shares to PTEK. No person has any preemptive rights or rights
of first refusal with respect to any of the shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of the
shares, nor are there any outstanding rights options, warrants, or calls with
respect to the Shares.
2.2 Representations of the Warranties of Clark. Clark represents and
warrants to Clark as follows:
a. Organization. Clark is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Oklahoma, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. Clark has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on Clark, enforceab le in accordance with their terms.No consent
or approval must be obtained from any other person or entity. Further, the
consummation and performance of the transactions contained herein do not
conflict with, require the approval of, result in a breach or default
hereunder, or give to another any interest or right of termination,
cancellation or acceleration, in or with respect to, any material agreement to
which Clark is a party or by which Clark or any of its material assets or
properties are affected.
c. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of PTEK's conduct.
d. Full Disclosure. To the knowledge of Clark, all statements of
Clark c ontained in this Agreement and other documentation delivered on behalf
of Clark to PTEK are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein no
misleading in light of the circumstances under which they were made.There are
no facts known to Clark, which could have a materially adverse affect on the
business, financial condition, results of operation, assets, liabilities, or
prospects of Clark, which have not been disclosed to PTEK in this Agreement or
its exhibits, or which are not known by Clark.
e. Title to the Shares. At Closing, Clark shall transfer to PTEK of
record and beneficially the number of PTEK's Exchange Shares listed in
Paragraph 1.3, free and clear of all encumbrances, liens, pledges, claims,
options, charges and assessments of any nature whatsoever. No person has any
preemptive rights or rights of first refusal with respect to any of the
Exchange Shares. There exists no voting agreement, voting trust, or
outstanding proxy with respect to any of the Exchange Shares, nor are there
any outstanding rights options, warrants, or calls with respect to the
Exchange Shares.
ARTICLE III.
COVENANTS.
3.1 Covenants of PTEK. PTEK covenants and agrees that it will use its best
efforts, subject to its obligations to the Company, from the date hereof to
the closing without the prior written consent of Clark to cause the following
to occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or alter
any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of Clark, and Company will maintain
its corporate existence, licenses, permits powers, and rights in full force
and effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of Clark.
I. Notice of Change. The Company will promptly advise Clark in
writing of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
3.2 Covenants of Clark. Clark covenants and agrees that it will, from the
date hereof to the closing without the prior written consent of PTEK to cause
the following to occur:
a. Interest of Shares: Interest shall be calculated based on 1,500,000
@ 8.5% interest for the year, and shall be payable as set forth below together
with the base number of shares or in cash, per the promissory note.
b. Delivery of Shares. Deliver the common stock of PTEK as set forth
in Paragraph 1 (a) to be delivered as follows: 72,000 shares of PTEK stock by
July 31, 1996, and the balance to be delivered in four equal interest
installments of 7,589 shares to be delivered on the following dates: October
31, 1996, January 31, 1997, May 31, 1997, and July 31, 1997. The principal
payment of 356,571 shares is due July 31, 1997.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of PTEK and Clark to close the Transaction contemplated
hereunder is subject to fulfillment by the Clark and PTEK of each of the
following conditions, which may be waived in whole or in part in writing:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties of Clark and of the PTEK shall have been true
and correct when made and shall be true and correct as of the Closing Date
with the same force and effect as if made at Closing. The Clark and PTEK
shall have performed all agreements, covenants and conditions required to be
performed prior to Closing. The Company shall have complied with the
statements in paragraph 3.1(a.) through 3.1(I.).
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company or the PTEK.
4.3 No Legal Proceeding. No suit, action, or other legal or administrative
proceeding before any court or other governmental agency shall be pending
seeking to enjoin the consummation of this Transaction by any shareholder or
director of the Company or of PTEK.
4.4 Documents to be Delivered by the Clark. The Clark shall have delivered
the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to PTEK and in blank or accompanied by duly executed stock
powers.
B. Such other documents or certificates as shall be reasonably required
by PTEK or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by PTEK.
A. Stock Certificates representing the Exchange Shares of Keystone
Laboratories duly issued to Clark, or their agents or assigns.
B. Such other documents or certificates as shall be reasonably required
by Clark or its attorney to close or consummate the transaction.
ARTICLE V.
MISCELLANEOUS
5.1 Modification. PTEK and Clarks may amend, modify, or supplement this
Agreement in any manner as they mutually agree only in writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
exchange of the shares may be abandoned before this Closing:
a. By the mutual consent of Clark, and PTEK.
b. By PTEK, if the representations and warranties of Clark set forth
shall not be accurate; or any of the conditions precedent set forth in
Article IV shall not have been satisfied in all material respects; or
c. By Clark, if the representations and warranties of PTEK set forth
herein shall not be accurate, or any of the conditions precedent set forth in
Article IV shall not have been satisfied in all materials respects.
d. By any party not in default if the Closing shall not have occurred
on or before August 31, 1996.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Assignability. Clark or PTEK may not assign this Agreement without the
express, prior, written consent of the other party.
5.4 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.5 Applicable Law. This Agreement and Transaction is are made pursuant to
and will be construed under, the laws of Florida.
5.6 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to PTEK, to:
Proactive Technologies, Inc.
Mark A. Conner, President
7118 Beech Ridge Trail
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax: (904) 668-9100
With Copy to:
Robert E. Maloney, Jr., Esquire
8984 Eagle's Ridge Drive
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax (904) 668-9100
b.) If to Clark, to:
Joel C. Holt
Keystone Laboratories, Inc.
1200 Biltmore Avenue
Asheville, North Carolina
Telephone: (800) 635-5765
Fax: (704) 255-0525
With Copy to:
Rick Clark
G. David Gordon, Esquire
C/o Klenda, Gordon & Getchell, P.C.
610 ONEOK Plaza
100 West Fifth Street
Tulsa, Oklahoma 74103
Telephone: (918) 587-9191
Fax: (918) 587-0054
Any change in addresses may be made provided written notice is given to the
other parties.
5.7 Headings. The headings contained herein are for reference only and do
not affect in any way the meaning or interpretation of this agreement.
5.8 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.9 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.10 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the parties in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both PTEK and Clark and shall
be given a fair and reasonable interpretation in accordance with the words
hereof, without consideration or weight to its having been drafted by either
party.
5.11 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
PTEK
Witness PROACTIVE TECHNOLOGIES, INC.
By:__________________________
Witness Mark A. Conner, President
Clark Capital Corp.
Witness By:__________________________
Richard T. Clark, Jr.
Witness
PROMISSORY NOTE
$1,250,000.00
Tallahassee, FL
July 1, 1996
FOR VALUE RECEIVED, We promise to pay, without defalcation, to the order
of PROACTIVE TECHNOLOGIES, INC., a Delaware corporation, at 7118 Beech Ridge
Trail, Tallahassee, Florida 32312, the sum of ONE MILLION TWO HUNDRED FIFTY
THOUSAND AND 00/100ths ($1,250,000.00) DOLLARS, which shall incur interest at
the rate of eight and one half per cent (8 1/2%) per annum from date in one
lump payment on or before the 31st day of July, l997, or sooner as described
below, at which time the entire outstanding principal indebtedness, in the
amount of ONE MILLION TWO HUNDRED FIFTY THOUSAND AND 00/100ths DOLLARS
($1,250,000.00), together with interest, shall become due and payable at once.
This principal shall be due and payable on the maturity date and be
payable in either cash, cashier's check, money order, or common stock of
Proactive Technologies, Inc. (AMEX:PTE). For purposes of this note PTE stock
shall be valued at $3.50 per share.
Interest payments on this note shall be due quarterly; specifically
monthly payments of $26,562.50 or 7,589 shares of PTE stock shall be due and
owing on October 1, 1996, January 31, 1997, May 31, 1997 and July 31, 1997.
If default is made in the payment of the note when due, then, at the
option of the holder, and without any further notice, the note shall be due
and payable at once and said principal sum shall accrue interest from such
time until paid at eighteen per cent (18%) or the highest rate allowable under
the laws of the State of Florida, whichever is greater. Privilege is given to
pay installments at any time prior to the maturity date, but this shall not
extend the time of maturity of the note. Neither forbearance, nor acceptance
by the holder hereof after default in any payment thereon, shall be deemed
extension.
We, or each us expressly, waive any claim of usury under Florida law,
Federal law, or any other law or regulation of any other municipality, state,
local or otherwise, should enforcement of any of the terms and conditions of
this loan become necessary.
Each maker, surety and endorser hereof, jointly and severally, waives
demand, presentment, protest and notice of protest for nonpayment, and further
agrees to any extension of time of payment, either before or after maturity,
without notice to any of us; and to pay all costs of collection, including
reasonable attorneys' fees in the event of default hereunder.
If default be made in the payment of any of the sums or interest
mentioned herein, or in any of the agreements contained herein, then the
entire principal sum and accrued interest shall, at the option of the holder
hereof, become at once due and collectible with notice, time being of the
essence; Failure to exercise this option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default.
By: By:
Clark Capital Corporation Richard T. Clark, Jr.
Richard T. Clark, Jr.,
President
By: By:
Joel C. Holt G. David Gordon
STOCK EXCHANGE AGREEMENT
Flowers Properties, Inc.
This Stock Purchase Agreement (Agreement) is entered into this 12th day
of August, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware
corporation (hereinafter referred to as PTE), FLOWERS PROPERTIES , INC., a
Georgia corporation (hereinafter referred to as Company or FPI) and LANGDON
S. FLOWERS, LANGDON S. FLOWERS, JR., MARGARET FLOWERS RICH, ELIZABETH FLOWERS
MCKINNEY, JOHN HOWARD FLOWERS and DOROTHY FLOWERS SWINSON, (hereinafter
Flowers Group) being the sole shareholders of the Company.
WHEREAS, Flowers Groups are the owners of record and beneficially own all
of the issued and outstanding shares of the Common Stock of the Company (the
Shares):
WHEREAS, the Flowers Groups desire to sell all of their issued and
outstanding shares to PTE, and PTE wishes to buy all of the outstanding shares
as follows:
Langdon S. Flowers 31.5%
Langdon S. Flowers, Jr. 13.7%
Margaret Flowers Rich 13.7%
Elizabeth Flowers Rich 13.7%
John Howard Flowers 13.7%
Dorothy Flowers Swinson 13.7%
WHEREAS, PTE and Flowers Groups agree that the intent of this transaction
is to be a B reorganization under Section 368(1)(B) of the Internal Revenue
Code of 1986; and
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
EXCHANGE OF THE SHARES
1.1 Exchange. Subject to the terms and conditions hereof, at the Closing
(as defined below), Flowers Groups agree to assign, transfer, convey and
deliver to PTE, and PTE agrees to exchange from Flowers Group, the shares of
FPI stock, copies of said shares which are attached as Exhibit A hereto.
1.2 Closing. The exchange shall be consummated at the Closing to take
place at the office of the PTE on or before August 12, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Exchange Terms. The aggregate exchange shares (Exchange Shares)
for the shares shall be as follows Three Hundred Fifty Thousand (350,000)
shares of the stock of PTE;
The above stock shall be paid at closing to the individual holders
in restricted stock, which PTE asserts to file with the SEC to have said stock
registered and unrestricted with all reasonable speed.
The parties agree that if the per share stock price of the Company,
as of the last ten trading days prior to December 31, 1996 (the average
closing stock price), shall not average at least $3.50 per share, then the
Flowers Group shall be given the number of shares of PTE stock which would
make up any difference between the average closing stock price and $3.50.
The individual disbursement of PTEK shares to the individual holders
of FPI stock shall be as follows:
Langdon S. Flowers 31.5% 110,250 PTEK shares
Langdon S. Flowers, Jr. 13.7% 47,950 PTEK shares
Margaret Flowers Rich 13.7% 47,950 PTEK shares
Elizabeth Flowers McKinney
13.7% 47,950 PTEK shares
John Howard Flowers 13.7% 47,950 PTEK shares
Dorothy Flowers Swinson 13.7% 47,950 PTEK shares
TOTAL 100% 350,000
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Company. The Company represents
and warrants to PTE as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Georgia, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of
the Company consists of ( ) Shares of $ par value Common
Stock, of which ( ) shares have been issued and are
outstanding. The Shares have been duly authorized, validly issued, are fully
paid are non assessable and have no liability attaching to the ownership
thereof. The Company does not have any outstanding rights, call, options,
which obligate it to issue any of its shares of Capital Stock, whether
authorized or not. Further, the Company is not bound by any agreement,
contract, arrangement or understanding, whether oral or written, giving any
person or entity the right to participate, share in, or in any way, obligating
the Company to distribute any portion of its income, profits or assets.
C. Authority. The Company has full power and lawful authority to
execute and deliver this Agreement and the Stock Certificates in order to
consummate and perform all of the matters contemplated herein. The executed
Agreement and Stock Certificates constitute valid and legally binding
obligations upon the Company, enforceable in accordance with the terms
thereof. The execution and/or delivery of the Agreement or the Stock
Certificates and the consummation and performance of these matters conflicts
with, requires the consent, waiver or approval of, results in a breach or
default of or gives rise to others and interest or right of termination,
cancellation or acceleration of any material matter contained in this
Agreement or any other Agreement which the Company is a part thereof.
D. Property. As of Closing, the Flowers Group warrants and represents
that the Company has the following assets and debt at Closing, and the
valuations given are true and correct and the Flowers Group have a reasonable
basis and have used the same generally accepted accounting principles to
arrive at these values.
Site Est. Sales Value Debt Equity
Fairways at Glen Arven
$ 744,100 79,985 664,115
Woodlands 988,000 148,956 831,044
Pine Summit Phase I 27,000 27,000
Pine Summit Phase II 270,000 100,277 169,723
Subtotal 2,021,100 329,218 1,691,882
Projected Equity
Phase III 490,000 224,000 266,000
Totals 2,511,100 553,218 1,957,882
Pine Summit Phase III
28 lots @ $17,500 sales
490,000
28 lots @ $8,000 dev.cost
(224,000)
Projected Equity 266,000
A schedule of lots owned by Company, as well as copies of all
encumbrances thereon are attached as Composite Exhibit B and are warranted and
represented by the Flowers Group to be the only assets and liabilities of the
Company as of the date of Closing.
E. Company's Financial Statements. The Company's statements are
complete, were provided to Buyers and Buyers have had ample time to read and
understand said financial statements and perform due diligence required to the
satisfaction of the Buyer. Except as disclosed in the financial statements,
the company is not aware of any material liabilities for which the Company is
liable or will become liable in the future. Further, Sellers agree to provide
audited financials within forty five (45) days of the date hereof.
F. Taxes. The Company has filed all taxes, state, federal, and
local, as well as any other reports and returns which were required to be
filed and there exists a substantial basis in law or fact for any positions
taken in such reports. To the best of the knowledge of the Company, there are
no back taxes, penalties or interest due at this time.
G. Books and Records. The Company's books and records are complete and
correct and have been maintained according to good business practices and
accurately reflect in all material respects reflects the business, financial
condition and results of the operation of the Company as set forth in the
Company's Financial statements.
H. Insurance.The Company has the following insurance associated with
its policies of general liability, fire and extended coverage, worker's
compensation, products liability, property and indemnity and performance bonds
as listed on Exhibit D, and is not in default with any provisions thereof, and
said insurance is sufficient for compliance by Company with all requirements
of law and all agreements affecting Company. Company warrants that these
coverages will remain in full force and effect through Closing of this
transaction and will not be affected by, terminate or lapse by reason of the
transactions contemplated in this Agreement.
I. Material Agreements. All material agreements, employment
agreements, contracts or other material arrangement with any officer, director
or shareholder of the Company or any relative of such person, or any
agreements which would have a material affect on the business, financial
condition, results of operation, assets, liabilities, or prospects of the
Company have been disclosed in the attached Exhibit E. If not disclosed in
this exhibit, Company warrants that it does not exist.
J. Permits. All necessary permits, licenses, approvals, or other
authorizations that are materially necessary for the conduct of its business
are set forth in Exhibit F, and all are still in full force and effect and are
agreed to be transferred as a part of this transaction.
K. Compliance. The Company is not in violation of any federal, state
or local law, ordinance or rule or regulation applicable to its business, nor
has it received any actual or threatened complaint, notice or citation of
violation from any governmental authority. Further, Company is in compliance
with all applicable pollution control and environmental laws, rules and
regulations in all material respects, and has no environmental licenses,
permits or authorizations.
L. Litigation. There are no actions, suits, claims, complaints,
proceedings pending or threatened against the Company or the Flowers Groups,
or either of them, at law or in equity; and there are no facts which would
provide a legitimate basis for any such action, suit or proceeding, which if
decided against the Company or Flowers Groups or either of them, would have a
materially adverse effect on the Company. Further, there are no outstanding
orders, judgments or decrees of any person or governmental authority which
specifically affect the Company or any of its assets.
M. Validity of existing contracts. All material contracts,
agreements. Leases and licenses, which the Company is a party or by which any
of its properties or assets are bound or affected, are valid and in full force
and effect; and no breach or default exists, or upon giving timely notice,
would exist on the part of the Company or of any other party.
N. No material changes. Since July 1, 1996, there have been no
actual or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects.
O. Fees. All negotiations relating to this Transaction have been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, advisory fees for which the Company or the PTE will or
may be liable.
P. Full Disclosure. All statements of the Company contained in this
Agreem ent and other documentation delivered on behalf of the Company or the
Flowers Group to PTE are true and correct in all material respects and do not
omit any material fact necessary to make the statements contained therein
misleading in light of the circumstances under which they were made.There are
no facts known to the Company, which could have a materially adverse affect on
the business, financial condition, results of operation, assets, liabilities,
or prospects of the Company, which have not been disclosed to PTE in this
Agreement or its exhibits.
2.2 Representations and Warranties of Flowers Group. Flowers Group
represents and warrants to PTE, with respect to the Shares owned by the
Flowers Group, as follows:
a. Title to the Shares. At Closing, Flowers Groups shall own of
record and beneficially the number of shares listed in Paragraph 1.3 of the
Company, free and clear of all encumbrances, liens, pledges, claims, options,
charges and assessments of any nature whatsoever, with full right and
authority to transfer said shares to PTE. No person has any preemptive rights
or rights of first refusal with respect to any of the shares. There exists no
voting agreement, voting trust, or outstanding proxy with respect to any of
the shares, nor are there any outstanding rights options, warrants, or calls
with respect to the Shares.
b. Ownership Rights. Flowers Group warrant that as of Closing they
will be the record owner of all of the properties, rights to contracts,
assignee of permits, etc. as set forth in Paragraph 2.1 (d), (e) and (f), and
that said property has estimated fair market values as set forth therein.
2.3 Representations of the Warranties of PTE. PTE represents and warrants
as follows:
a. Organization. PTE is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. PTE has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on the PTE, enforceab le in accordance with their terms.No consent
or approval must be obtained from any other person or entity. Further, the
consummation and performance of the transactions contained herein, does not
conflict with, require the approval of , result in a breach or default
hereunder, or give to other any interest or right of termination, cancellation
or acceleration, in or with respect to, any material agreement to which PTE is
a party or by which PTE or any of its material assets or properties are
affected.
c. Investment intent. PTE is acquiring the shares for its own account,
for investment purposes only, and not with a view toward the sale or
distribution of any part thereof, and PTE has no present intention of selling,
granting participation in, or otherwise distributing same to any entity to
which it does not control. PTE understands the specific risks related to any
investment in the shares, especially as it relates to the financial
performance of the Company.
d. No Litigation. There are no action, suits, claims, complaints, or
proceedings pending or threatened against PTE, at law or in equity, or before
any governmental department; and there are no facts which would provide a
legitimate basis for any such action, suit, or proceeding, which, if
determined adversely to the PTE, which would have a material affect on the
PTE. There are no judgments, orders, r decrees outstanding which specifically
apply to any of the PTE's assets.
ARTICLE III.
COVENANTS.
3.1 Covenants of the Company. Company covenants and agrees that from the
date hereof to the closing without the prior written consent of PTE the
following will occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or
alter any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of PTE, and Company will maintain its
corporate existence, licenses, permits powers, and rights in full force and
effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of PTE.
I. Notice of Change. The Company will promptly advise PTE in writing
of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
j. Tax Free Reorganization. It is the express intent of the parties to
this agreement that the transaction described in this Agreement is intended as
a tax free exchange D reorganization as under Section 368(a) (1) (B) of the
Internal Revenue Code of 1986.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of PTE and Flowers Group to close the Transaction
contemplated hereunder is subject to fulfillment by the Company, Flowers Group
and PTE of each of the following conditions, which may be waived in whole or
in part in writing:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties of the Company and Flowers Groups and of the
PTE have been true and correct when made and shall be true and correct as of
the Closing Date with the same force and effect as if made at Closing. The
Company, Flowers Groups and PTE shall have performed all agreements, covenants
and conditions required to be performed prior to Closing.
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company.
4.3 No Legal Proceeding. No suit, action, or other legal or
administrative proceeding before any court or other governmental agency shall
be pending seeking to enjoin the consummation of this Transaction.
4.4 Minimum Fair Market Value. PTE represents that for the ten (10)
trading days prior to December 31, 1996, PTE' stock shall average at least
$3.50 per share. In the event that the average in that time period fails to
meet that requirement, PTE shall deliver more stock to the Flowers Groups to
bring their stock equivalent as if the stock had averaged $3.50 per share as
of December 31, 1996.
4.5 Documents to be Delivered by the Company and Flowers Groups. The
Company and Flowers Groups shall have delivered the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to PTE and in blank or accompanied by duly executed stock powers
B. A copy of the Articles of Incorporation and Bylaws of the Company,
as amended to date, certified as correct by the Company,
C. Certificate of Good Standing from the State of Georgia.
D. All agreements referred to in Paragraph 1.4, executed by all parties
E. All corporate and other records of or applicable to the Company,
including, but not limited to: current and up to date minute books, stock
transfer books and registers, books of accounts, list of properties held or to
be held by the Company, leases and material contracts.
F. Such other documents or certificates as shall be reasonably required
by PTE or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by PTE.
A. PTE shall have delivered a certificate of good standing from the
Secretary of State of the State of Delaware.
B. All agreements referred to in Paragraph 1.4, executed by all parties
ARTICLE V.
MISCELLANEOUS
5.1 Modification. PTE, the Company and Flowers Group may amend, modify, or
supplement this Agreement in any manner as they mutually agree only in
writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
purchase of the shares may be abandoned before this Closing:
a. By the mutual consent of the Flowers Group, the PTE, and the
Company.
b. By PTE, if the representations and warranties of the Company or
Flowers Group set forth shall not be accurate; or the condition precedent set
forth in Article IV shall not have been satisfied in all material respects; or
c. By the Company or Flowers Group, if the representations and
warranties of PTE set forth herein shall not be accurate, or the conditions
precedent set forth in Article IV shall not have been satisfied in all
materials respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Assignability. PTE may not assign this Agreement without the express,
prior, written consent of Flowers Group.
5.4 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.5 Applicable Law. This Agreement and Transaction is are made pursuant
to and will be construed under, the laws of Florida.
5.6 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to PTE, to:
Proactive Technologies, Inc.
Mark A. Conner, President
7118 Beech Ridge Trail
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax: (904) 668-9100
b.) If to Flowers Group, to:
Langdon S. Flowers, Jr.
P.O. Box 997
Thomasville, Georgia 31799-0997
329 North Broad Street
Thomasville, Georgia 31792
Telephone: (912) 228-6100
Fax: (912) 228-6103
Any change in addresses may be made provided written notice is given to the
other parties.
5.7 Headings. The headings contained herein are for reference only and do not
affect in any way the meaning or interpretation of this agreement.
5.8 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.9 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.10 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the parties in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both PTE and Flowers Group and
shall be given a fair and reasonable interpretation in accordance with the
words hereof, without consideration or weight to its having been drafted by
either party.
5.11 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
5.12 Exhibits. The following is a list of the Exhibits attached to this Stock
Purchase Agreement:
Exhibit Section Identification
A. Copies of shares of
stock held in name of
Six FPI shareholders
B. List of Lots and
Properties and
Encumbrances owned by FPI
C. Not Applicable
D. List of Insurance
E. List of Material Agreements of FPI
F. Copies of Permits, Licenses, Approvals, etc.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
Witness PTE
Witness PROACTIVE TECHNOLOGIES, INC.
Witness By:
Mark A. Conner,President
Witness
THE COMPANY
Witness
FLOWERS PROPERTIES, INC.
Witness By:
Langdon S. Flowers, Jr.,
President
Witness
Witness
Witness FLOWERS GROUP
Witness
Langdon S. Flowers
Witness
Witness Langdon S. Flowers, Jr.
Witness Margaret Flowers Rich
Witness Elizabeth Flowers McKinney
Witness John Howard Flowers
Witness Dorothy Flowers Swinson
STOCK EXCHANGE AGREEMENT
Highland Properties Construction Co., Inc.
This Stock Exchange Agreement (Agreement) is entered into this 13th day
of August, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware
corporation (hereinafter referred to as Buyer), HIGHLANDS PROPERTIES
CONSTRUCTION COMPANY, INC., a Georgia corporation (hereinafter referred to as
Company) and LANGDON S. FLOWERS, JR. and GEORGE MCINTOSH, (hereinafter
Sellers) being the sole shareholders of the Company.
WHEREAS, Sellers are the owners of record and beneficially own all of the
issued and outstanding shares of the Common Stock of the Company (the Shares);
and
WHEREAS, the Sellers desire to exchange all of their issued and
outstanding shares to Buyer, and Buyer wishes to exchange all of the
outstanding shares of Company as follows:
Langdon S. Flowers, Jr. 54.85%
George McIntosh 45.15%
WHEREAS, Buyer and Sellers agree that the intent of this transaction is
to be a B reorganization under Section 368(1)(B) of the Internal Revenue Code
of 1986; and
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
SALE AND PURCHASE OF THE SHARES
1.1 Sale and Exchange. Subject to the terms and conditions hereof, at
the Closing (as defined below), Sellers agree to assign, transfer, convey and
deliver to Buyer, and Buyer agrees to exchange Sellers, the shares listed in
Exhibit A, attached hereto.
1.2 Closing. The exchange be consummated at the Closing to take place
at the office of the Buyer on or before August 12, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Exchange Terms. The aggregate exchange shares (Exchange Shares) for
the shares shall be as follows One Million Nine Hundred Fifteen Thousand One
Shares (1,915,001) shares of the stock of Buyer.
The above stock shall be paid at closing to the individual Sellers
in restricted stock, which Buyer asserts to file with the SEC to have said
stock unrestricted with all deliberate speed. The stock shall be split as
follows:
Langdon S. Flowers, Jr. 1,050,378
George McIntosh 864,623
The parties agree that if the per share stock price of the Company,
as of the last ten trading days prior to December 31, 1996 (the average
closing stock price), shall not average at least $3.50 per share, then Sellers
shall be given the number of shares of Buyer's stock which would make up the
difference between the average closing stock price and $3.50.
1.4 Other Agreements. Additionally, the parties agree as follows:
1. Buyer agrees to employ George MacIntosh for a period of five (5)
years at a current annual salary of $60,000.00 pursuant to an Employment
Agreement similar to the one attached as Exhibit B.
2. Buyer agrees to pay $1,000.00 per at Closing for every lot contained
in Exhibit A to Highland Properties Joint Venture of Flowers Investments, Inc.
a Florida corporation,and McIntosh Construction Company, Inc., a Georgia
corporation, for administrative fees associated with the advertising and
selling of each lot.
3. Buyer agrees to employ Robert Cagle, as accountant and bookkeeper
for theSouth Georgia operations, or any other position selected by Buyer, for
a period of five (5) years at a current annual salary of $36,000.00 pursuant
to an Employment Agreement similar to the one attached as Exhibit C. Buyer
agrees to pay Flowers Investments, Inc. the sum of $3,300.00 per month, which
includes the cost of health insurance during the first year employment. For
years 2-5 Mr. Cagle will be reatined and paid this monhtly amount directly,
and he will be responsible for his own health insurance premiums.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Company. The Company represents
and warrants to Buyer as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Georgia, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of
the Company consists of One Hundred Thousand (100,000)Shares of $0.01 par
value Common Stock, of which Two Thousand Two Hundred and Fifteen (2,215)
shares have been issued and are outstanding. The Shares have been duly
authorized, validly issued, are fully paid, are non assessable and have no
liability attaching to the ownership thereof. The Company does not have any
outstanding rights, call, options, which obligate it to issue any of its
shares of Capital Stock, whether authorized or not. Further, the Company is
not bound by any agreement, contract, arrangement or understanding, whether
oral or written, giving any person or entity the right to participate, share
in, or in any way, obligating the Company to distribute any portion of its
income, profits or assets.
C. Authority. The Company has full power and lawful authority to
execute and deliver this Agreement and the Stock Certificates in order to
consummate and perform all of the matters contemplated herein. The executed
Agreement and Stock Certificates constitute valid and legally binding
obligations upon the Company, enforceable in accordance with the terms
thereof. The execution and/or delivery of the Agreement or the Stock
Certificates and the consummation and performance of these matters conflicts
with, requires the consent, waiver or approval of, results in a breach or
default of or gives rise to others and interest or right of termination,
cancellation or acceleration of any material matter contained in this
Agreement or any other Agreement which the Company is a part thereof.
D. Property. As of Closing, Sellers warrantsand represent that the
Company has the following assets and debt, and the valuations given are true
and correct and Flowers have a reasonable basis in arriving at these values:
See Attached Exhibit D
Copies of Schedules of Lots and properties owned by Company
(Composite Exhibit D), as well as balance sheets (Exhibit E) are attached
hereto, and comprise the only assets and liabilities of the Company at the
time of Closing.
E. Company's Financial Statements. The Company's statements are
complete, were provided to Buyers and Buyers have had ample time to read and
understand said financial statements and perform sufficient due diligence
required to the satisfaction of the Buyer. Except as disclosed in the
financial statements, to the best of its knowledge, the Company is not aware
of any material liabilities for which the Company is liable or will become
liable in the future. Further, Buyers agree to provided audited financial
statements within forty five (45) days of the execution of this Agreement.
F. Taxes. The Company has filed, or will file, all taxes, state,
federal, and local, as well as any other reports and returns which were
required to be filed and there exists a substantial basis in law or fact for
any positions taken in such reports. To the best of the knowledge of the
Company, there are no back taxes, penalties or interest due at this time. Any
taxes not filed will be filed by the Closing date.
G. Books and Records. The Company's books and records are complete and
correct and have been maintained according to good business practices and
accurately reflect in all material respects reflects the business, financial
condition and results of the operation of the Company as set forth in the
Company's Financial statements.
H. Insurance. The Company has the following insurance associated
with its policies of general liability, fire and extended coverage, worker's
compensation, products liability, property and indemnity and performance bonds
as listed on Exhibit D, and is not in default with any provisions thereof, and
said insurance is sufficient for compliance by Company with all requirements
of law and all agreements affecting Company. Company warrants that these
coverages will remain in full force and effect through Closing of this
transaction and will not be affected by, terminate or lapse by reason of the
transactions contemplated in this Agreement.
I. Material Agreements. All material agreements, employment
agreements, contracts or other material arrangement with any officer, director
or shareholder of the Company or any relative of such person, or any
agreements which would have a material affect on the business, financial
condition, results of operation, assets, liabilities, or prospects of the
Company have been disclosed in the attached Exhibit E. If not disclosed in
this exhibit, Company warrants that it does not exist.
J. Permits. All necessary permits, licenses, approvals, or other
authorizations that are materially necessary for the conduct of its business
are set forth in Exhibit F, and all are still in full force and effect and are
agreed to be transferred as a part of this transaction.
K. Compliance. To the best of the knowledge of the Company, it is
not in violation of any federal, state or local law, ordinance or rule or
regulation applicable to its business, nor has it received any actual or
threatened complaint, notice or citation of violation from any governmental
authority. Further, Company is in compliance with all applicable pollution
control and environmental laws, rules and regulations in all material
respects, and has no environmental licenses, permits or authorizations.
L. Litigation. There are no actions, suits, claims, complaints,
proceedings pending or threatened against the Company or the Sellers, or
either of them, at law or in equity; and to the best of the knowledge of the
Company and the Sellers, there are no facts which would provide a legitimate
basis for any such action, suit or proceeding, which if decided against the
Company or Sellers or either of them, would have a materially adverse effect
on the Company. Further, there are no outstanding orders, judgments or
decrees of any person or governmental authority which specifically affect the
Company or any of its assets.
M. Validity of existing contracts. All material contracts,
agreements. Leases and licenses, which the Company is a party or by which any
of its properties or assets are bound or affected have been provided to Buyer,
are valid and in full force and effect; and no breach or default exists, or
upon giving timely notice, would exist on the part of the Company or of any
other party.
N. No material changes. Since July 1, 1996, there have been no
actual or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects.
O. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, advisory fees for which the Company or the Buyer will or
may be liable.
P. Full Disclosure. All statements of the Company contained in this
A greement and other documentation delivered on behalf of the Company or the
Seller to Buyer are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein
misleading in light of the circumstances under which they were made.There are
no facts known to the Company, which could have a materially adverse affect on
the business, financial condition, results of operation, assets, liabilities,
or prospects of the Company, which have not been disclosed to Buyer in this
Agreement or its exhibits.
2.2 Representations and Warranties of Seller. Seller represents and
warrants to Buyer, with respect to the Shares owned by the Seller, as follows:
a. Title to the Shares. At Closing, Seller shall own of record and
beneficially the number of shares listed in Paragraph 1.3 of the Company, free
and clear of all encumbrances, liens, pledges, claims, options, charges and
assessments of any nature whatsoever, with full right and authority to
transfer said shares to Buyer. No person has any preemptive rights or rights
of first refusal with respect to any of the shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of the
shares, nor are there any outstanding rights options, warrants, or calls with
respect to the Shares.
2.3 Representations of the Warranties of Buyer. Buyer represents and
warrants as follows:
a. Organization. Buyer is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. Buyer has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on the Buyer, enforceable in accordance with their terms.No
consent or approval must be obtained from any other person or entity.
Further, the consummation and performance of the transactions contained
herein, does not conflict with, require the approval of , result in a breach
or default hereunder, or give to other any interest or right of termination,
cancellation or acceleration, in or with respect to, any material agreement to
which Buyer is a party or by which Buyer or any of its material assets or
properties are affected.
c. Investment intent. Buyer is acquiring the shares for its own
account, for investment purposes only, and not with a view toward the sale or
distribution of any part thereof, and Buyer has no present intention of
selling, granting participation in, or otherwise distributing same to any
entity to which it does not control. Buyer understand the specific risks
related to any investment in the shares, especially as it relates to the
financial performance of the Company.
d. No Litigation. There are no action, suits, claims, complaints, or
proceedings pending or threatened against Buyer, at law or in equity, or
before any governmental department; and to the best of the knowledge of the
Buyer, there are no facts which would provide a legitimate basis for any such
action, suit, or proceeding, which, if determined adversely to the Buyer,
which would have a material affect on the Buyer. There are no judgments,
orders, or decrees outstanding which specifically apply to any of the Buyer's
assets.
ARTICLE III.
COVENANTS.
3.1 Covenants of the Company. Company covenants and agrees that from the
date hereof to the closing without the prior written consent of Buyer the
following will occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or
alter any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of Buyer, and Company will maintain
its corporate existence, licenses, permits powers, and rights in full force
and effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of Buyer.
I. Notice of Change. The Company will promptly advise Buyer in
writing of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of Buyer and Seller to close the Transaction contemplated
hereunder is subject to fulfillment by the Company, Seller and Buyer of each
of the following conditions, which may be waived in whole or in part in
writing:
4.1 Compliance with representations, Warranties and Covenants. The
representations and warranties of the Company and Sellers and of the Buyer
have been true and correct when made and shall be true and correct as of the
Closing Date with the same force and effect as if made at Closing. The
Company, Sellers and Buyer shall have performed all agreements, covenants and
conditions required to be performed prior to Closing.
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company.
4.3 No Legal Proceeding. No suit, action, or other legal or
administrative proceeding before any court or other governmental agency shall
be pending seeking to enjoin the consummation of this Transaction.
4.4 Documents to be Delivered by the Company and Sellers. The Company and
Sellers shall have delivered the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to Buyer and in blank or accompanied by duly executed stock
powers
B. A copy of the Articles of Incorporation and Bylaws of the Company,
as amended to date, certified as correct by the Company,
C. Certificate of Good Standing from the State of Georgia.
D. All agreements referred to in Paragraph 1.4, executed by all parties
E. All corporate and other records of or applicable to the Company,
including, but not limited to: current and up to date minute books, stock
transfer books and registers, books of accounts, list of properties held or to
be held by the Company, leases and material contracts.
F. Such other documents or certificates as shall be reasonably required
by Buyer or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by Buyer.
A. Buyer shall have delivered a certificate of good standing from the
Secretary of State of the State of Delaware.
B. All agreements referred to in Paragraph 1.4, executed by all parties
ARTICLE V.
MISCELLANEOUS
5.1 Modification. Buyer, the Company and Seller may amend, modify, or
supplement this Agreement in any manner as they mutually agree only in
writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
purchase of the shares may be abandoned before this Closing:
a. By the mutual consent of the Seller, the Buyer, and the Company.
b. By Buyer, if the representations and warranties of the Company or
Sellers set forth shall not be accurate; or the condition precedent set forth
in Article IV shall not have been satisfied in all material respects; or
c. By the Company or Seller, if the representations and warranties of
Buyer set forth herein shall not be accurate, or the conditions precedent set
forth in Article IV shall not have been satisfied in all materials respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Representations and Warranties to Survive. Unless otherwise provided,
all of the representations and warranties contained in this Agreement and in
any certificate, exhibit, or other document delivered pursuant to this
Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any party hereto or their representatives shall
constitute a waiver of any representation or warranty, and no such
representation or warranty shall be merged into the Closing.
5.4 Assignability. Buyer may not assign this Agreement, without prior written
consent of Sellers.
5.5 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.6 Applicable Law. This Agreement and Transaction is are made pursuant
to and will be construed under, the laws of Florida.
5.7 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to Buyer, to:
Proactive Technologies, Inc.
Mark A. Conner, President
7118 Beech Ridge Trail
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax: (904) 668-9100
b.) If to Sellers, to:
Langdon S. Flowers, Jr.
P.O. Box 997
Thomasville, Georgia 31799-0997
329 North Broad Street
Thomasville, Georgia 31792
Telephone: (912) 228-6100
Fax: (912) 228-6103
And
George C.McIntosh
P.O. Box 712
Albany, Georgia 31702
Telephone: (912) 436-8811
Fax: (912) 436-8817
Any change in addresses may be made provided written notice is given to the
other parties.
5.8 Headings. The headings contained herein are for reference only and do not
affect in any way the meaning or interpretation of this agreement.
5.9 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.10 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.11 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the parties in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both Buyer and Sellers and
shall be given a fair and reasonable interpretation in accordance with the
words hereof, without consideration or weight to its having been drafted by
either party.
5.12 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
5.13 List of Exhibits.
Exhibit Location Description
A Art. I, 1.1 Copies of Sellers Shares
B Art. I, 1.4(1) McIntosh Employment Agreement
C Art. I, 1.4(3) Cagle Employment Agreement
D Art. II, 2.1(D) Properties of Company
E Art. II, 2.1(D) Balance Sheet as of Closing
F Art. II, 2.1(I) List of Material Agreements
G Art. II, 2.1(J) List of Permits
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement on the date first written above.
PTE
Stockholders PTE
By: By:
Langdon S. Flowers, Jr. Mark A. Conner, President
By: THE COMPANY
George C. McIntosh HIGHLAND PROPERTIES
CONSTRUCTION COMPANY, INC.
By:
Langdon S. Flowers, Jr.,
President
STOCK EXCHANGE AGREEMENT
Barrier Dunes Development Corporation
This Stock Exchange Agreement (Agreement) is entered into this 12th day
of August, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware
corporation (hereinafter referred to as Buyer), BARRIER DUNES DEVELOPMENT
CORPORATION, a Florida corporation (hereinafter referred to as Company) and
LANGDON S. FLOWERS, JR. and LANGDON S. FLOWERS, SR., (hereinafter Flowers)
being the sole shareholders of the Company.
WHEREAS, Flowers are the owners of record and beneficially own all of the
issued and outstanding shares of the Common Stock of the Company (the Shares);
and
WHEREAS, the Flowers desire to exchange all of their issued and
outstanding shares to PTE, and PTE wishes to exchange all of the outstanding
shares of Company as follows:
Langdon S. Flowers, Jr. 50.22%
Langdon S. Flowers, Sr. 49.78%
WHEREAS, PTE and Flowers agree that the intent of this transaction is to
be a B reorganization under Section 368(1)(B) of the Internal Revenue Code of
1986; and
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
EXCHANGE OF THE SHARES
1.1 Exchange. Subject to the terms and conditions hereof, at the Closing
(as defined below), Flowers agree to assign, transfer, convey and deliver to
PTE, and PTE agrees to exchange Flowers, the shares listed in Exhibit A,
attached hereto.
1.2 Closing. The exchange be consummated at the Closing to take place
at the office of the PTE on or before August 12, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Exchange Terms. The aggregate exchange shares (Exchange Shares) for
the shares shall be as follows: Three Hundred Thousand Shares (300,000) shares
of the stock of PTE.
The above stock shall be paid at closing to the individual Flowers
in restricted stock, which PTE asserts to file with the SEC to have said stock
unrestricted with all deliberate speed. The PTE stock will be parcelled out
to Flowers as follows:
Langdon S. Flowers, Jr. 150,660 shares of PTE
Langdon S. Flowers, Sr. 149,340 shares of PTE
The parties agree that if the per share stock price of the Company,
as of the last ten trading days prior to December 31, 1996 (the average
closing stock price), shall not average at least $3.50 per share, then Flowers
shall be given the number of shares of PTE's stock which would make up the
difference between the average closing stock price and $3.50.
1.4 Other Agreements. Additionally, the parties agree as follows:
1. PTE will cause Company to execute an indemnification agreement to
Langdon Flowers, Jr. with regard to a $2,145,653.31 note to Nationsbank, which
Company is obligor, but which Langdon S. Flowers, Jr. is guarantor. Said
indemnification agreement will be substantially in the form attached as
Exhibit B hereto.
2. PTE will cause Company to enter into a guaranteed fee agreement with
Langdon S. Flowers, Jr., in substantially the form attached as Exhibit C
hereto.
3. As and for collateral for the above, PTE will cause the Company to
execute a mortgage to Langdon S. Flowers, Jr., secured by the property listed
below of the property owned by Company, which mortgage will be paid according
to the attached Loan Repayment Schedule attached as Composite Exhibit D and
incorporated herein by reference. Said mortgage shall also encumber the
property owned by Flowers Properties, Inc., which owns the property set forth
in separate written agreement. This property shall also be paid according to
the attached Loan Repayment Schedule until said debt has been eliminated. By
separate agreement, the parties will also agree that this loan will be secured
by future properties, either purchased or exchanged for by Company from time
to time so long as a substitution of collateral is approved by Flowers.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Company. The Company represents
and warrants to PTE as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Florida, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of
the Company consists of ( ) Shares of $ par value Common Stock, of
which ( ) shares have been issued and are outstanding.
The Shares have been duly authorized, validly issued, are fully paid, are non
assessable and have no liability attaching to the ownership thereof. The
Company does not have any outstanding rights, call, options, which obligate it
to issue any of its shares of Capital Stock, whether authorized or not.
Further, the Company is not bound by any agreement, contract, arrangement or
understanding, whether oral or written, giving any person or entity the right
to participate, share in, or in any way, obligating the Company to distribute
any portion of its income, profits or assets.
C. Authority. The Company has full power and lawful authority to
execute and deliver this Agreement and the Stock Certificates in order to
consummate and perform all of the matters contemplated herein. The executed
Agreement and Stock Certificates constitute valid and legally binding
obligations upon the Company, enforceable in accordance with the terms hereof.
The execution and/or delivery of the Agreement or the Stock Certificates and
the consummation and performance of these matters does not conflict with,
require the consent, waiver or approval of, result in a breach or default of
or give rise to others and interest or right of termination, cancellation or
acceleration of any material matter contained in this Agreement or any other
Agreement which the Company is a part thereof.
D. Property. As of Closing,or no later than September 1, 1996 with
regard to the Secluded Dunes property, Flowers warrants and represents that
the Company has the following assets and debt, and the valuations given are
true and correct and Flowers have a reasonable basis in arriving at these
values.
Barrier Dunes Site Est. Sales Value Debt Equity
Townhome #34 $ 160,000 --0-- 160,000
Townhome #35 $ 160,000 --0-- 160,000
Townhome #42 $ 150,000 --0-- 160,000
Townhome #176 $ 130,000 --0-- 160,000
Townhome #128 $ 140,000 --0-- 160,000
Townhome #134 $ 140,000 --0-- 140,000
Subtotal 880,000 --0-- 880,000
Lots
13 Gulfview
TH Lots @ 65K $ 845,000 --0-- 845,000
36 Golf/Tennis Villa Lots @ 35K
$ 1,120,000 --0-- 1,120,000
10 Lakefront Villa Lots @ 35K
$ 350,000 --0-- 350,000
16 Parkside/Lakeside Lots @25K
$ 400,000 --0-- 400,000
Subtotal 2,715,000 --0-- 2,715,000
Total Barrier
Dunes Property$ 3,595,000 3,595,000
Secluded Dunes Site
Est. Sales Value Debt Equity
Gulf Front F-3 $ 299,000 299,000
2nd Tier 5 Lots @ 60K
$ 300,000 --0-- 300,000
Parkside 6 Lots @50K
$ 300,000 --0-- 300,000
Total Secluded Dunes
$ 899,000 --0-- 899,000
Debt
Nationsbank(as of 8/12/96) ($ 2,145,653.31)
Copies of Schedules of Lots and properties owned by Company
(Composite Exhibit D), as well as balance sheets (Exhibit E) are attached
hereto, and comprise the only assets and liabilities of the Company at the
time of Closing.
E. Company's Financial Statements. The Company's statements are
complete, were provided to PTE and PTE have had ample time to read and
understand said financial statements and perform sufficient due diligence
required to the satisfaction of the PTE. Except as disclosed in the
financial statements, to the best of its knowledge, the Company is not aware
of any material liabilities for which the Company is liable or will become
liable in the future. Further, Flowers agrees to provide audited financials
within forty five (45) days of the execution of this Agreement.
F. Taxes. The Company has filed, or will file, all taxes, state,
federal, and local, as well as any other reports and returns which were
required to be filed and there exists a substantial basis in law or fact for
any positions taken in such reports. To the best of the knowledge of the
Company, there are no back taxes, penalties or interest due at this time. Any
taxes not filed will be filed by the Closing date.
G. Books and Records. The Company's books and records are complete and
correct and have been maintained according to good business practices and
accurately reflect in all material respects reflects the business, financial
condition and results of the operation of the Company as set forth in the
Company's Financial statements.
H. Insurance. The Company has the following insurance associated
with its policies of general liability, fire and extended coverage, worker's
compensation, products liability, property and indemnity and performance bonds
as listed on Exhibit D, and is not in default with any provisions thereof, and
said insurance is sufficient for compliance by Company with all requirements
of law and all agreements affecting Company. Company warrants that these
coverages will remain in full force and effect through Closing of this
transaction and will not be affected by, terminate or lapse by reason of the
transactions contemplated in this Agreement.
I. Material Agreements. All material agreements, employment
agreements, contracts or other material arrangement with any officer, director
or shareholder of the Company or any relative of such person, or any
agreements which would have a material affect on the business, financial
condition, results of operation, assets, liabilities, or prospects of the
Company have been disclosed in the attached Exhibit E. If not disclosed in
this exhibit, Company warrants that it does not exist.
J. Permits. All necessary permits, licenses, approvals, or other
authorizations that are materially necessary for the conduct of its business
are set forth in Exhibit F, and all are still in full force and effect and are
agreed to be transferred as a part of this transaction.
K. Compliance. To the best of the knowledge of the Company, it is
not in violation of any federal, state or local law, ordinance or rule or
regulation applicable to its business, nor has it received any actual or
threatened complaint, notice or citation of violation from any governmental
authority. Further, Company is in compliance with all applicable pollution
control and environmental laws, rules and regulations in all material
respects, and has no environmental licenses, permits or authorizations.
L. Litigation. There are no actions, suits, claims, complaints,
proceedings pending or threatened against the Company or the Flowers, or
either of them, at law or in equity; and to the best of the knowledge of the
Company and the Flowers, there are no facts which would provide a legitimate
basis for any such action, suit or proceeding, which if decided against the
Company or Flowers or either of them, would have a materially adverse effect
on the Company. Further, there are no outstanding orders, judgments or
decrees of any person or governmental authority which specifically affect the
Company or any of its assets.
M. Validity of existing contracts. All material contracts,
agreements. Leases and licenses, which the Company is a party or by which any
of its properties or assets are bound or affected have been provided to PTE,
are valid and in full force and effect; and no breach or default exists, or
upon giving timely notice, would exist on the part of the Company or of any
other party.
N. No material changes. Since July 1, 1996, there have been no
actual or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects.
O. Fees. All negotiations relating to this Transaction have been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, advisory fees for which the Company or the PTE will or
may be liable.
P. Full Disclosure. All statements of the Company contained in this
Agreement and other documentation delivered on behalf of the Company or the
Flowers to PTE are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein
misleading in light of the circumstances under which they were made.There are
no facts known to the Company, which could have a materially adverse affect on
the business, financial condition, results of operation, assets, liabilities,
or prospects of the Company, which have not been disclosed to PTE in this
Agreement or its exhibits.
2.2 Representations and Warranties of Flowers. Flowers represents and
warrants to PTE, with respect to the Shares owned by the Flowers, as follows:
a. Title to the Shares. At Closing, Flowers shall own of record and
beneficially the number of shares listed in Paragraph 1.3 of the Company, free
and clear of all encumbrances, liens, pledges, claims, options, charges and
assessments of any nature whatsoever, with full right and authority to
transfer said shares to PTE. No person has any preemptive rights or rights of
first refusal with respect to any of the shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of the
shares, nor are there any outstanding rights options, warrants, or calls with
respect to the Shares.
2.3 Representations of the Warranties of PTE. PTE represents and warrants
as follows:
a. Organization. PTE is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. PTE has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on the PTE, enforceab le in accordance with their terms.No consent
or approval must be obtained from any other person or entity. Further, the
consummation and performance of the transactions contained herein, does not
conflict with, require the approval of , result in a breach or default
hereunder, or give to other any interest or right of termination, cancellation
or acceleration, in or with respect to, any material agreement to which PTE is
a party or by which PTE or any of its material assets or properties are
affected.
c. Investment intent. PTE is acquiring the shares for its own account,
for investment purposes only, and not with a view toward the sale or
distribution of any part thereof, and PTE has no present intention of selling,
granting participation in, or otherwise distributing same to any entity to
which it does not control. PTE understand the specific risks related to any
investment in the shares, especially as it relates to the financial
performance of the Company.
d. No Litigation. There are no action, suits, claims, complaints, or
proceedings pending or threatened against PTE, at law or in equity, or before
any governmental department; and to the best of the knowledge of the PTE,
there are no facts which would provide a legitimate basis for any such action,
suit, or proceeding, which, if determined adversely to the PTE, which would
have a material affect on the PTE. There are no judgments, orders, or decrees
outstanding which specifically apply to any of the PTE's assets.
ARTICLE III.
COVENANTS.
3.1 Covenants of the Company. Company covenants and agrees that from the
date hereof to the closing without the prior written consent of PTE the
following will occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or
alter any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of PTE, and Company will maintain its
corporate existence, licenses, permits powers, and rights in full force and
effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of PTE.
I. Notice of Change. The Company will promptly advise PTE in writing
of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of PTE and Flowers to close the Transaction contemplated
hereunder is subject to fulfillment by the Company, Flowers and PTE of each of
the following conditions, which may be waived in whole or in part in writing:
4.1 Compliance with representations, Warranties and Covenants. The
representations and warranties of the Company and Flowers and of the PTE have
been true and correct when made and shall be true and correct as of the
Closing Date with the same force and effect as if made at Closing. The
Company, Flowers and PTE shall have performed all agreements, covenants and
conditions required to be performed prior to Closing.
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company.
4.3 No Legal Proceeding. No suit, action, or other legal or
administrative proceeding before any court or other governmental agency shall
be pending seeking to enjoin the consummation of this Transaction.
4.4 Documents to be Delivered by the Company and Flowers. The Company and
Flowers shall have delivered the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to PTE and in blank or accompanied by duly executed stock powers
B. A copy of the Articles of Incorporation and Bylaws of the Company,
as amended to date, certified as correct by the Company,
C. Certificate of Good Standing from the State of Florida.
D. All agreements referred to in Paragraph 1.4, executed by all
parties.
E. All corporate and other records of or applicable to the Company,
including, but not limited to: current and up to date minute books, stock
transfer books and registers, books of accounts, list of properties held or to
be held by the Company, leases and material contracts.
F. Such other documents or certificates as shall be reasonably required
by PTE or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by PTE.
A. PTE shall have delivered a certificate of good standing from the
Secretary of State of the State of Delaware.
B. All agreements referred to in Paragraph 1.4, executed by all parties
ARTICLE V.
MISCELLANEOUS
5.1 Modification. PTE, the Company and Flowers may amend, modify, or
supplement this Agreement in any manner as they mutually agree only in
writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
purchase of the shares may be abandoned before this Closing:
a. By the mutual consent of the Flowers, the PTE, and the Company.
b. By PTE, if the representations and warranties of the Company or
Flowers set forth shall not be accurate; or the condition precedent set forth
in Article IV shall not have been satisfied in all material respects; or
c. By the Company or Flowers, if the representations and warranties of
PTE set forth herein shall not be accurate, or the conditions precedent set
forth in Article IV shall not have been satisfied in all materials respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Representations and Warranties to Survive. Unless otherwise provided,
all of the representations and warranties contained in this Agreement and in
any certificate, exhibit, or other document delivered pursuant to this
Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any party hereto or their representatives shall
constitute a waiver of any representation or warranty, and no such
representation or warranty shall be merged into the Closing.
5.4 Assignability. PTE may not assign this Agreement, without prior written
consent of Flowers.
5.5 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.6 Applicable Law. This Agreement and Transaction is are made pursuant
to and will be construed under, the laws of Florida.
5.7 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to PTE, to:
Proactive Technologies, Inc.
Mark A. Conner, President
7118 Beech Ridge Trail
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax: (904) 668-9100
b.) If to Flowers, to:
Langdon S. Flowers, Jr.
P.O. Box 997
Thomasville, Georgia 31799-0997
329 North Broad Street
Thomasville, Georgia 31792
Telephone: (912) 228-6100
Fax: (912) 228-6103
Any change in addresses may be made provided written notice is given to the
other parties.
5.8 Headings. The headings contained herein are for reference only and do not
affect in any way the meaning or interpretation of this agreement.
5.9 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.10 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.11 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the part ies in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both PTE and Flowers and shall
be given a fair and reasonable interpretation in accordance with the words
hereof, without consideration or weight to its having been drafted by either
party.
5.12 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
5.13 List of Exhibits.
Exhibit Location Description
A Art. I, 1.1 Copies of Flowers Shares
B Art. I, 1.4(1) IndemnificationAgreement
C Art. I, 1.4(2) Guaranteed Fee Agreement
D Art. II, 2.1(D) Schedule of Lists and
Properties
E Art. II, 2.1(D) Barrier Dunes Balance Sheets
F. Art. II, 2.1(H) Insurance and Bonds
G. Art. II, 2.1(I) List of Material Agreements
H. Art. II, 2.1(J) List of Permits
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
PTE
Flowers PROACTIVE TECHNOLOGIES, INC.
LANGDON S. FLOWERS, JR.
By:
By: Mark A. Conner,
Langdon S. Flowers, Jr. President
THE COMPANY
LANGDON S. FLOWERS, SR.
BARRIER DUNES
DEVELOPMENT CORPORATION
By: By:
Langdon S. Flowers, Sr. Langdon S. Flowers, Jr.
President
STOCK EXCHANGE AGREEMENT
QuinStone Industries, Inc.
This Stock Exchange Agreement (Agreement) is entered into this 16th day
of September, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware
corporation (hereinafter referred to as PTEK), and JAMES H. DAHL and ROCK
CREEK PARTNERS, LTD., a Florida Limited Partnership, (hereinafter collectively
referred to as Dahl Group).
WHEREAS, Dahl Group is the owner of record and together beneficially own
eighty two per cent (82%) of the issued and outstanding shares of the Voting
Common Stock (the Shares) of QuinStone Industries, Inc. (the Company) and the
Dahl Group's desire to exchange all of their issued and outstanding shares of
the Company for voting stock of PTEK, and PTEK wishes to acquire all of the
Dahl Groups' outstanding shares of the Company as follows:
James H. Dahl 41% 1,642 shares
Rock Creek
Partners, Ltd. 41% 1,642 shares
TOTAL SHARES OF COMPANY 82% 3,284 shares
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
EXCHANGE OF THE SHARES
1.1 Exchange. Subject to the terms and conditions hereof, at the Closing
(as defined below), Dahl Group agrees to assign, transfer, convey and deliver
to PTEK, and PTEK agrees to acquire from Dahl Group, 3,284 shares of QuinStone
voting common stock in exchange for 750,000 shares of voting common stock of
PTEK (the Exchange Shares).
1.2 Closing. The exchange shall be consummated at the Closing to take
place at the office of the PTEK on or before September 9, 1996, unless
otherwise mutually agreed upon by the parties.
1.3 Exchange Shares. The individual disbursement of Exchange Shares
shall be issued as follows:
James H. Dahl 50% 375,000 PTEK shares
Rock Creek Partners, Ltd.
50% 375,000 PTEK shares
TOTAL 100% 750,000
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Dahl Group. Dahl Group represents
and warrant to PTEK as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Florida, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of
the Company consists of Four Thousand One Hundred and Five (4,105) Shares
of $1.00 par value Common Stock, of which Three Thousand Nine Hundred and
Seventy Three (3,973) shares have been issued and are outstanding. The Shares
have been duly authorized, validly issued, are fully paid are non assessable
and have no liability attaching to the ownership thereof. To the best of Dahl
Group's knowledge, the Company does not have any outstanding rights, call,
options, which obligate it to issue any of its shares of Capital Stock,
whether authorized or not. To the best of Dahl Group's knowledge, the Company
is not bound by any agreement, contract, arrangement or understanding, whether
oral or written, giving any person or entity the right to participate, share
in, or in any way, obligating the Company to distribute any portion of its
income, profits or assets.
C. Company's Financial Statements. To the knowledge of the Dahl
Group, the Company's statements, dated July 31, 1996, are complete, were
prepared in accordance with generally accepted accounting principles applied
on a basis consistent with prior periods and fairly present the financial
position of the Company as of July 31, 1996. Except as disclosed in the
financial statements, the company is not aware of any material liabilities for
which the Company is liable or will become liable in the future, other than
liabilities arising in the ordinary course. Dahl Group agrees to provide said
financial to the PTEK or his agents prior to execution.
D Taxes. To the knowledge of the Dahl Group, the Company has filed
all taxes, state, federal, and local, as well as any other reports and returns
which were required to be filed and there exists a substantial basis in law or
fact for any positions taken in such reports. To the best of the knowledge of
the Dahl Group, there are no back taxes, penalties or interest due at this
time.
E. Books and Records. To the knowledge of Dahl Group, the Company's
books and records are complete and correct and have been maintained according
to good business practices and accurately reflect in all material respects
reflects the business, financial condition and results of the operation of the
Company as set forth in the Company's Financial statements.
F Insurance. To the knowledge of the Dahl Group, the Company has
the following insurance associated with its policies of general liability,
fire and extended coverage, worker's compensation, products liability,
property and indemnity and performance bonds and has delivered copies of same
to PTEK prior to execution, and is not in default with any provisions thereof,
and said insurance is sufficient for compliance by Company with all
requirements of law and all agreements affecting Company. These coverages
will remain in full force and effect through Closing of this transaction and
will not be affected by, terminate or lapse by reason of the transactions
contemplated in this Agreement.
G. Material Agreements. To the knowledge of the Dahl Group, all
material agreements, employment agreements, contracts or other material
arrangement with any officer, director or shareholder of the Company or any
relative of such person, or any agreements which would have a material affect
on the business, financial condition, results of operation, assets,
liabilities, or prospects of the Company have been disclosed to PTEK prior to
execution of this Agreement.
H Permits. To the knowledge of the Dahl Group, all necessary permits,
licenses, approvals, or other authorizations that are materially necessary for
the conduct of its business will be shown to PTEK prior to execution, all of
which are still in full force and effect and will continue to be owned by the
Company after Closing.
I. Compliance. To the knowledge of the Dahl Group, the Company is
not in violation of any federal, state or local law, ordinance or rule or
regulation applicable to its business, nor has it received any actual or
threatened complaint, notice or citation of violation from any governmental
authority. Further, to the knowledge of the Dahl Group, the Company is in
compliance with all applicable pollution control and environmental laws, rules
and regulations in all material respects, and has no environmental licenses,
permits or authorizations.
J. Litigation. To the knowledge of the Dahl Group, there are no
actions, suits, claims, complaints, proceedings pending or threatened against
the Company or the Dahl Group, or either of them, at law or in equity, except
as disclosed in Exhibit B; and there are no facts which would provide a
legitimate basis for any such action, suit or proceeding, which if decided
against the Company or Dahl Group or either of them, would have a materially
adverse effect on the Company. Further, to the knowledge of the Dahl Group,
there are no outstanding orders, judgments or decrees of any person or
governmental authority which specifically affect the Company or any of its
assets.
K. Validity of existing contracts. To the knowledge of the Dahl
Group, all material contracts, agreements. Leases and licenses, which the
Company is a party or by which any of its properties or assets are bound or
affected, are valid and in full force and effect; and to the knowledge of the
Dahl Group, no breach or default exists, or upon giving timely notice, would
exist on the part of the Company or of any other party.
L. No material changes. Since July 31, 1996, there have been no
actual or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects, except as disclosed in Exhibit
C.
M. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of Dahl Group's conduct.
N. Full Disclosure. To the knowledge of the Dahl Group, all
statements of the Dahl Group contained i n this Agreement and other
documentation delivered on behalf of the Dahl Group to PTEK are true and
correct in all material respects and do not omit any material fact necessary
to make the statements contained therein no misleading in light of the
circumstances under which they were made.There are no facts known to the Dahl
Group, which could have a materially adverse affect on the business, financial
condition, results of operation, assets, liabilities, or prospects of the
Company, which have not been disclosed to PTEK in this Agreement or its
exhibits, or which are not known by PTEK.
O. Title to the Shares. At Closing, Dahl Group shall own of record
and beneficially the number of shares listed in Paragraph 1.3 of the Company,
free and clear of all encumbrances, liens, pledges, claims, options, charges
and assessments of any nature whatsoever, with full right and authority to
transfer said shares to PTEK. No person has any preemptive rights or rights
of first refusal with respect to any of the shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of the
shares, nor are there any outstanding rights options, warrants, or calls with
respect to the Shares.
2.2 Representations of the Warranties of PTEK. PTEK represents and warrants
to Dahl Group as follows:
a. Organization. PTEK is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. PTEK has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on the PTEK, enforceab le in accordance with their terms.
No consent or approval must be obtained from any other person or entity.
Further, to the best of PTEK's knowledge, the consummation and performance of
the transactions contained herein do not conflict with, require the approval
of , result in a breach or default hereunder, or give to another any interest
or right of termination, cancellation or acceleration, in or with respect to,
any material agreement to which PTEK is a party or by which PTEK or any of its
material assets or properties are affected.
c. No Litigation. There are no actions, suits, claims, complaints, or
proceedings pending or threatened against PTEK, at law or in equity, or before
any governmental department ,except as disclosed in Exhibit D; and there are
no facts which would provide a legitimate basis for any such action, suit, or
proceeding, which, if determined adversely to the PTEK, which would have a
material affect on the PTEK. There are no judgments, orders, or decrees
outstanding which specifically apply to PTEK or any of the PTEK's assets.
d. Authorized Capitalization. The authorized capitalization of the
PTEK consists of Sixty Million (60,000,000) Shares of $0.04 par value Common
Stock, of which Thirteen Million One Hundred Ninety Five Thousand Four Hundred
Twenty Three (13,195,423) shares have been issued and are outstanding. The
Shares have been duly authorized, validly issued, are fully paid are non
assessable and have no liability attaching to the ownership thereof. To the
best of PTEK's knowledge, PTEK does not have any outstanding rights, call,
options, which obligate it to issue any of its shares of Capital Stock,
whether authorized or not. To the best of PTEK's knowledge, PTEK is not bound
by any agreement, contract, arrangement or understanding, whether oral or
written, giving any person or entity the right to participate, share in, or in
any way, obligating PTEK to distribute any portion of its income, profits or
assets.
e. PTEK's Financial Statements. To the knowledge of the PTEK, its
financial statements, consisting of the June 30, 1995 Form 10-KSB, the
September 30, 1995 Form 10-QSB, the December 31, 1995 Form 10-QSB, and the
March 31, 1996 Form 10-QSB, are all complete, were prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods and fairly present the financial position of the PTEK as of the
date thereof. Except as disclosed in such financial statements, PTEK is not
aware of any material liabilities for which PTEK is liable or will become
liable in the future, other than liabilities arising in the ordinary course.
f. Taxes. To the knowledge of the PTEK, PTEK has filed all taxes,
state, federal, and local, as well as any other reports and returns which were
required to be filed and there exists a substantial basis in law or fact for
any positions taken in such reports. To the best of the knowledge of the
PTEK, there are no back taxes, penalties or interest due at this time.
g. Books and Records. To the knowledge of PTEK, PTEK's books and
records are complete and correct and have been maintained according to good
business practices and accurately reflect in all material respects reflects
the business, financial condition and results of the operation of the PTEK as
set forth in the PTEK's Financial statements.
h. Insurance. To the knowledge of the PTEK, PTEK has insurance
associated with its policies of general liability, fire and extended coverage,
worker's compensation, products liability, property and indemnity and
performance bonds and has delivered copies of same to Dahl Group prior to
execution of this Agreement, and is not in default with any provisions
thereof, and said insurance is sufficient for compliance by PTEK with all
requirements of law and all agreements affecting PTEK. These coverages will
remain in full force and effect through Closing of this transaction and will
not be affected by, terminate or lapse by reason of the transactions
contemplated in this Agreement.
i. Material Agreements. To the knowledge of the PTEK, all material
agreements, employment agreements, contracts or other material arrangement
with any officer, director or shareholder of PTEK or any relative of such
person, or any agreements which would have a material affect on the business,
financial condition, results of operation, assets, liabilities, or prospects
of the PTEK have been disclosed to Dahl Group prior to execution of this
Agreement.
j. Permits. To the knowledge of the PTEK, all necessary permits,
licenses, approvals, or other authorizations that are materially necessary for
the conduct of its business will be shown to the Dahl Group prior to
execution, all of which are still in full force and effect.
k. Compliance. To the knowledge of the PTEK, PTEK is not in
violation of any federal, state or local law, ordinance or rule or regulation
applicable to its business, nor has it received any actual or threatened
complaint, notice or citation of violation from any governmental authority.
Further, to the knowledge of the PTEK, PTEK is in compliance with all
applicable pollution control and environmental laws, rules and regulations in
all material respects, and has no environmental licenses, permits or
authorizations.
l. Validity of existing contracts. To the knowledge of the PTEK, all
material contracts, agreements, leases and licenses, which the PTEK is a party
or by which any of its properties or assets are bound or affected, are valid
and in full force and effect; and no breach or default exists, or upon giving
timely notice, would exist on the part of the PTEK or of any other party.
m. No material changes. Since March 31, 1996, there have been no
actual or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects, except as disclosed in Exhibit
E.
n. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of PTEK's conduct.
o. Full Disclosure. To the knowledge of the PTEK, all statements of
the PTEK contained i n this Agreement and other documentation delivered on
behalf of the PTEK to Dahl Group are true and correct in all material
respects and do not omit any material fact necessary to make the statements
contained therein no misleading in light of the circumstances under which they
were made.There are no facts known to the PTEK, which could have a materially
adverse affect on the business, financial condition, results of operation,
assets, liabilities, or prospects of the PTEK, which have not been disclosed
to Dahl Group in this Agreement or its exhibits, or which are not known by
Dahl Group.
p. Title to the Shares. At Closing, PTEK shall transfer to Dahl
Group of record and beneficially the number of PTEK's Exchange Shares listed
in Paragraph 1.3, free and clear of all encumbrances, liens, pledges, claims,
options, charges and assessments of any nature whatsoever. No person has any
preemptive rights or rights of first refusal with respect to any of the
Exchange Shares. There exists no voting agreement, voting trust, or
outstanding proxy with respect to any of the Exchange Shares, nor are there
any outstanding rights options, warrants, or calls with respect to the
Exchange Shares.
ARTICLE III.
COVENANTS.
3.1 Covenants of the Dahl Group. The Dahl Group covenants and agrees that it
will use their best efforts, subject to their obligations to the Company, from
the date hereof to the closing without the prior written consent of PTEK to
cause the following to occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or
alter any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of PTEK, and Company will maintain
its corporate existence, licenses, permits powers, and rights in full force
and effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of PTEK.
i. Notice of Change. The Company will promptly advise PTEK in writing
of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
j. Corporate Disclosure. The Dahl Group has provided PTEK with
copies of the Articles of Incorporation and all Amendments filed with the
Secretary of State of Florida and with a copy of the Amended ByLaws of the
Company. The ByLaws provide there shall be not less than three nor more than
nine directors. The Corporate Minute Book reflects there are currently two
(2) persons serving as directors of the Company. The Dahl Group agrees to
elect three (3) directors of PTEK's choice to the Board by majority
shareholder written consent immediately prior to the Closing pursuant to this
Agreement.
3.2 Covenants of the PTEK. PTEK agrees that it will cause the following to
occur:
a. Registration of Exchange Shares. Cause the Exchange Shares to be
registered with the SEC, within one year from the date hereof in accordance
with the Registration Rights Agreement. If PTEK fails to comply with the
foregoing or fails to maintain such registration in effect until termination
of the Registration Rights Agreement, PTEK shall, upon demand by Dahl Group
issue and deliver 225,000 additional shares of PTEK voting common stock to
Dahl Group, adjusted appropriately for stock dividends, stock splits, and
other corporate transactions.
c. Tax Free Reorganization. The parties agree that this transaction is
intended to be a B reorganization under Section 368(a) (1) (B) of the Internal
Revenue Code of 1986. While neither party is warranting such to the other
with regard to this exchange, PTEK agrees not to acquire any additional
shares of Company through any other means other than solely though the
issuance of its voting stock so as not to cause the transaction described in
this agreement to be disqualified as a B reorganization. If PTEK does wish to
acquire additional shares of the Company through any other means other than
the transfer of its voting shares, it may do so only with the express written
consent of the Dahl Group, which consent will not be unreasonably withheld
upon the delivery of (I.) An opinion of counsel satisfactory to Dahl Group
that such acquisition will not cause the transaction described herein to be
disqualified as a B reorganization, and (ii.) an indemnification agreement
whereby PTEK agrees to indemnify Dahl Group from any federal income taxes,
penalties and interest therein and reasonable attorneys fees and costs
contesting same, payable as a result of the acquisition by means other than
solely by transfer of its voting stock, causing this transaction not to
qualify as a B reorganization.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of PTEK and Dahl Group to close the Transaction contemplated
hereunder is subject to fulfillment by the Dahl Group and PTEK of each of the
following conditions, which may be waived in whole or in part in writing:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties of Dahl Group and of the PTEK shall have been
true and correct when made and shall be true and correct as of the Closing
Date with the same force and effect as if made at Closing. The Dahl Group and
PTEK shall have performed all agreements, covenants and conditions required to
be performed prior to Closing. The Company shall have complied with the
statements in paragraph 3.1(a.) through 3.1(I.).
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company or the PTEK.
4.3 No Legal Proceeding. No suit, action, or other legal or
administrative proceeding before any court or other governmental agency shall
be pending seeking to enjoin the consummation of this Transaction by any
shareholder or director of the Company or of PTEK.
4.4 Documents to be Delivered by the Dahl Group. The Dahl Group shall have
delivered the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to PTEK and in blank or accompanied by duly executed stock
powers
B. A copy of the Articles of Incorporation and Bylaws of the Company,
as amended to date, certified as correct by the Dahl Group,
C. Certificate of Good Standing from the State of Florida.
D. Such other documents or certificates as shall be reasonably required
by PTEK or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by PTEK.
A. PTEK shall have delivered a certificate of good standing from the
Secretary of State of the State of Delaware.
B. Stock Certificates representing the Exchange Shares duly issued to
the Dahl Group.
C. Registration Rights Agreement in the form of Exhibit.
D. A copy of the Articles of Incorporation and Bylaws of the PTEK, as
amended to date, certified as correct by the PTEK, and Resolution by the Board
of Directors authorizing this transaction.
E. Such other documents or certificates as shall be reasonably required
by Dahl Group or its attorney to close or consummate the transaction.
ARTICLE V.
MISCELLANEOUS
5.1 Modification. PTEK and the Dahl Group may amend, modify, or supplement
this Agreement in any manner as they mutually agree only in writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
exchange of the shares may be abandoned before this Closing:
a. By the mutual consent of the Dahl Group, and the PTEK.
b. By PTEK, if the representations and warranties of the Dahl Group
set forth shall not be accurate; or any of the conditions precedent set forth
in Article IV shall not have been satisfied in all material respects; or
c. By the Dahl Group, if the representations and warranties of PTEK set
forth herein shall not be accurate, or any of the conditions precedent set
forth in Article IV shall not have been satisfied in all materials respects.
d. By any party not in default if the Closing shall not have occurred
on or before August 31, 1996.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Assignability. Dahl Group or PTEK may not assign this Agreement without
the express, prior, written consent of the other party.
5.4 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.5 Applicable Law. This Agreement and Transaction is are made pursuant
to and will be construed under, the laws of Florida.
5.6 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to PTEK, to:
Proactive Technologies, Inc.
Mark A. Conner, President
7118 Beech Ridge Trail
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax: (904) 668-9100
With Copy to:
Robert E. Maloney, Jr., Esquire
8984 Eagle's Ridge Drive
Tallahassee, Florida 32312
Telephone: (904) 668-8500
Fax (904) 668-9100
b.) If to Dahl Group, to:
James H. Dahl
1200 Gulf Life Drive, Suite 902
Jacksonville, Florida 32207
Telephone: (904) 393-9020
Fax: (904) 393-9003
With Copy to:
James L. Main, Esquire
Kirschner, Main, Graham, Tanner & Demont, P.A.
P.O. Box 1559
Jacksonville, Florida 32201-1559
Telephone: (904) 354-4141
Fax: (904) 358-2199
Any change in addresses may be made provided written notice is given to the
other parties.
5.7 Headings. The headings contained herein are for reference only and do not
affect in any way the meaning or interpretation of this agreement.
5.8 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.9 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.10 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the parties in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both PTEK and Dahl Group and
shall be given a fair and reasonable interpretation in accordance with the
words hereof, without consideration or weight to its having been drafted by
either party.
5.11 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
5.12 Exhibits. The following is a list of the Exhibits attached to this Stock
Purchase Agreement:
Exhibit Section Identification
A. Registration Rights Agreement
B. Litigation of QuinStone
C. Material Changes in Quinstone
since 7/31/96
D. Litigation of Proactive
Technologies, Inc
.
E. Material Changes in Proactive
Technologies since 3/31/96
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
PTEK
PROACTIVE TECHNOLOGIES, INC.
Witness
By:
Mark A. Conner, President
Witness
Dahl Group
Witness
James A. Dahl
Witness
Witness Rock Creek Partners, Ltd.
By:
Witness Its General Partner
