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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
PROACTIVE TECHNOLOGIES, INC.
----------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE, $0.04 PER SHARE
----------------------------------------
(Title of Class of Securities)
74266K307
---------
(CUSIP Number)
JAMES H. DAHL
1200 Riverplace Boulevard, Suite 902
Jacksonville, Florida 32207
(904) 393-9020
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications)
SEPTEMBER 16, 1996
------------------
(Date of Event Which Requires Filing
of This Statement)
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [X]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class).
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CUSIP No. 74266K307
- --------------------------------------------------------------------------------
1) NAMES OF REPORTING PERSONS / S.S OR I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS
JAMES H. DAHL / ###-##-####
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2) CHECK THE APPROPRIATE ROW IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a)
----------------------------------------------------------
(b) X
----------------------------------------------------------
- --------------------------------------------------------------------------------
3) SEC USE ONLY
- --------------------------------------------------------------------------------
4) SOURCE OF FUNDS (SEE INSTRUCTIONS)
OO
- --------------------------------------------------------------------------------
5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
- --------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A.
NUMBER OF 7) SOLE VOTING POWER 514,600
SHARES BENE-
FICIALLY 8) SHARED VOTING POWER 562,200
OWNED BY
EACH REPORT- 9) SOLE DISPOSITIVE POWER 514,600
ING PERSON
WITH 10) SHARED DISPOSITIVE POWER 562,200
- --------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,076,800
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CUSIP No. 742266K307
- --------------------------------------------------------------------------------
12) CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
- --------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
- --------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN
- --------------------------------------------------------------------------------
3
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CUSIP NO. 74266K307
- --------------------------------------------------------------------------------
1) NAMES OF REPORTING PERSONS / S.S OR I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS
ROCK CREEK PARTNERS, LTD. / 59-318-7964
- --------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE ROW IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a)
----------------------------------------------------
(b) X
---------------------------------------------------
- --------------------------------------------------------------------------------
3) SEC USE ONLY
- --------------------------------------------------------------------------------
4) SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
- --------------------------------------------------------------------------------
5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
- --------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION FLORIDA
- --------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER -0-
SHARES BENE-
FICIALLY 8) SHARED VOTING POWER 482,200
OWNED BY
EACH REPORT- 9) SOLE DISPOSITIVE POWER -0-
ING PERSON
WITH 10) SHARED DISPOSITIVE POWER 482,200
- --------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
482,200
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CUSIP NO. 742266K307
- --------------------------------------------------------------------------------
12) CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) X - 594,600
- --------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.5%
- --------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN
- --------------------------------------------------------------------------------
5
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ITEM 1. SECURITY AND ISSUER.
The title of the class of equity securities to which this Statement
relates is common stock, par value $0.04 per share, ("Common Stock"), issued by
Proactive Technologies, Inc. (the "Issuer"), the principal executive offices of
which are located at 7118 Beech Ridge Trail, Suite 402, Tallahassee, Florida
32312.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is being filed by James H. Dahl and Rock Creek
Partners, Ltd. ("Rock Creek"), a Florida limited partnership (the "Reporting
Persons").
Mr. Dahl's business address is 1200 Riverplace Boulevard, Suite 902,
Jacksonville, Florida 32207. Rock Creek's business address is 1200 Riverplace
Boulevard, Suite 902, Jacksonville, Florida 32207.
Mr. Dahl's present principal occupation is President of James Dahl &
Company, Inc., a private investment firm. The business address of James Dahl &
Company, Inc. is 1200 Riverplace Boulevard, Suite 902, Jacksonville, Florida
32207. Mr. Dahl is also Managing General Partner of Rock Creek. Rock Creek is
engaged in the business of investments.
Arthur L. Cahoon is the sole other general partner of Rock Creek. Mr.
Cahoon's business address is 1200 Riverplace Boulevard, Suite 902,
Jacksonville, Florida 32207, and Mr. Cahoon is principally engaged in the
business of investments.
Mr. Dahl, Mr. Cahoon and Rock Creek have not, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) nor been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction, and as a result of such
proceeding been subject to a judgment, decree or final order enjoining future
violations of, or prohibiting, or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Mr. Dahl and Mr. Cahoon are United States citizens. Rock Creek is a
Florida limited partnership.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Mr. Dahl and Rock Creek exchanged an aggregate of 3,284 shares of
Voting Common Stock of QuinStone Industries, Inc., a Florida Corporation,
pursuant to a Stock Exchange Agreement (the "QuinStone
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Exchange Agreement") for an aggregate of 750,000 shares of Common Stock of the
Issuer.
Mr. Dahl and Rock Creek exchanged an aggregate of 81,700 shares of
Voting Common Stock of Killearn Properties, Inc., a Florida corporation
("Killearn"), pursuant to a Stock Purchase Agreement and First Addendum thereto
(collectively, the "Killearn Purchase Agreement") for an aggregate of 326,800
shares of Common Stock of the Issuer.
ITEM 4. PURPOSE OF TRANSACTION.
The securities of the Issuer acquired by the Reporting Persons have
been acquired for investment purposes. The Reporting Persons may make
additional purchases of securities of the Issuer, including without limitation
Common Stock, either in the open market or in private transactions depending on
their evaluation of the Issuer's business, prospects and financial condition,
the market for Common Stock, other opportunities available to the Reporting
Persons, general economic conditions, money and stock market conditions and
other future developments. Depending on the same factors, the Reporting
Persons may decide to sell all or part of their investment in securities of the
Issuer, although they have no current intention to do so.
The shares to which this Statement relate were acquired from the
Issuer in the transactions described in Item 5 hereof.
The Reporting Persons have no present plans or proposals which relate
to or would result in:
(a) The acquisition by any person of additional securities of the
Issuer or the disposition of securities of the Issuer, except
as set forth above;
(b) An extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Issuer or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or management of
the Issuer, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies
on the board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
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(f) Any other material change in the Issuer's business or
corporate structure;
(g) Any change in the Issuer's charter, bylaws, or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of
a registered national securities association;
(i) A class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Mr. Dahl beneficially owns 1,076,800 shares of Common Stock,
constituting approximately 7.7% of the 13,945,423 outstanding shares of Common
Stock of the Issuer.
Mr. Dahl possesses sole voting and dispositive power with respect to
514,600 shares of Common Stock. In addition, Mr. Dahl (i) shares with his
spouse voting and dispositive power with respect to 80,000 shares owned jointly
with his spouse and (ii) shares with Rock Creek voting and dispositive power
with respect to 482,200 shares owned directly by Rock Creek. Rock Creek shares
with Mr. Dahl voting and dispositive power with respect to the shares directly
held by it.
Rock Creek directly owns 482,200 shares of Common Stock constituting
approximately 3.5% of the outstanding shares of Common Stock. Rock Creek may
be deemed to have acted as a member of a group with Mr. Dahl in the acquisition
of the shares of Common Stock to which this Statement relates and therefore may
be deemed to beneficially own all shares of Common Stock beneficially owned by
Mr. Dahl. Rock Creek disclaims beneficial ownership of such shares.
On September 19, 1996, pursuant to the QuinStone Exchange Agreement,
Mr. Dahl and Rock Creek each acquired 375,000 shares Common Stock of the Issuer
in exchange for 3,284 shares of Voting Common Stock of QuinStone Industries,
Inc.
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On August 7, 1996, pursuant to the Killearn Purchase Agreement, Mr.
Dahl acquired 219,600 shares of Common Stock directly, Mr. Dahl and his spouse
acquired 80,000 shares of Common Stock jointly, and Rock Creek acquired 107,200
shares of Common Stock in exchange for an aggregate of 81,700 shares of
Killearn.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The QuinStone Exchange Agreement contains an agreement of the Issuer
to register the shares of Common Stock acquired pursuant to the QuinStone
Exchange Agreement within one year from the date thereof in accordance with the
registration rights agreement discussed below. In the event such shares are
not registered by September 16, 1997, Issuer agreed to issue an aggregate of
225,000 additional shares of Common Stock to Mr. Dahl and Rock Creek. In
addition, in connection with the QuinStone Exchange Agreement, a registration
rights agreement dated September 16, 1996, between the Issuer and Rock Creek
and Mr. Dahl was entered into with respect to certain demand and piggyback
registration rights under the Securities Act of 1933, as amended (the "1933
Act").
The Killearn Purchase Agreement contains certain affirmative and
negative covenants with respect to the Issuer. The Killearn Purchase Agreement
contains an agreement of the Issuer to register the shares of Common Stock
acquired pursuant to the Killearn Purchase Agreement under the 1933 Act. In the
event such shares are not registered by July 31, 1997, Issuer agreed to issue
an aggregate of 98,040 additional shares of Common Stock to Mr. Dahl and Rock
Creek.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit A - Stock Exchange Agreement, dated September 16, 1996,
entered into between James H. Dahl, Rock Creek Partners,
Ltd., and Issuer
Exhibit B - Registration Rights Agreement, dated September 16, 1996,
entered into between James H. Dahl, Rock Creek Partners,
Ltd., and Issuer.
Exhibit C - Stock Purchase Agreement, dated May 20, 1996, entered
into by and among Issuer and James H. Dahl.
Exhibit D - First Addendum to Stock Purchase Agreement entered into
by and among Issuer and James H. Dahl.
Exhibit E - Joint Filing Agreement between James H. Dahl and Rock
Creek Partners, Ltd.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: September 25, 1996
/s/ JAMES H. DAHL
-----------------------------------
JAMES H. DAHL
ROCK CREEK PARTNERS, LTD.
By: /s/ James H. Dahl
--------------------------
James H. Dahl
Managing General Partner
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EXHIBIT 99.A
STOCK EXCHANGE AGREEMENT
QUINSTONE INDUSTRIES, INC.
This Stock Exchange Agreement ("Agreement') is entered into this 9th
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:
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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
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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
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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 in 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 not 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:
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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, enforceable 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
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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
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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 in 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 not 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
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<PAGE> 8
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,
8
<PAGE> 9
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:
9
<PAGE> 10
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 "A".
D. A copy of the Articles of Incorporation and Bylaws of the
PTEK, as amended
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<PAGE> 11
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
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<PAGE> 12
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.
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<PAGE> 13
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
13
<PAGE> 14
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement on the date first written above.
"PTEK"
- ---------------------------- PROACTIVE TECHNOLOGIES, INC.
Witness
By: /s/ Mark A. Conner
------------------------
- ---------------------------- Mark A. Conner, President
Witness
"DAHL GROUP"
- ---------------------------- /s/ James A.Dahl
Witness ----------------------------
James A. Dahl
- ----------------------------
Witness
- ----------------------------
Witness -----------------------------
Rock Creek Partners, Ltd.
/s/ Stephanie Koesy
- ---------------------------- By:
Witness -------------------------
Its General Partner
14
<PAGE> 1
Exhibit A
Registration Rights Agreement
This Agreement is entered into by and between James H. Dahl and Rock
Creek Partners, Ltd., a Florida limited partnership (individually, an
"Investor" and, collectively the "Investors") and Proactive Technologies, Inc.,
a Florida corporation (the "Company") as of this ___ day of August, 1996.
Section 1. Definitions. As used in this Agreement, unless the context
otherwise requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Common Stock: The shares of Common Stock, par value $.04 per
share, of the Company as existing on the date hereof.
Exchange Act: The Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such similar
Federal statute.
Person: A corporation, an association, a partnership, an
organization, business, an individual, a governmental or political
subdivison thereof or a governmental agency.
Registrable Securities: (a) any shares of Common Stock issued
pursuant to the Stock Exchange Agreement between the Investors and the
Company dated September __, 1996 and (b) securities issued or issuable
with respect to the foregoing by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Sections 2 and 3 hereof, including,
without limitation, all registration, filing and NASD fees, all fees
and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any
special audits or "cold comfort" letters required by or incident to
such performance and compliance, and any fees and disbursements of
underwriters customarily paid by issuers of securities, but excluding
underwriting discounts,
<PAGE> 2
commissions, transfer taxes or any other expense of the
Investor, if any
Requesting Holder: As defined in Section 3 hereof.
Securities Act: The Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References
to a particular section of the Securities Act shall include a reference
to the comparable section, if any, of any such similar Federal statute.
Section 2. Registration on Request. (a) Registration Required. At
any time or from time to time after the date hereof until such time as the
Investors shall be eligible to effect sales pursuant to Rule 144(k) under the
Securities Act or any similar rule or regulation hereafter adopted by the
Commission, upon the written request of one or more of the Investors, the
Company shall use its best efforts to effect the registration under the
Securities Act of all the Investors' Registrable Securities; provided that the
Company shall not be required to effect more than two registrations pursuant to
this Section 2 and shall not be required to complete an effective registration
prior to one year from the date hereof.
(b) Information. The Company agrees to include any registration
statement filed under this Section 2 all information which holders of
Registrable Securities being registered shall reasonably request (after giving
due regard to the confidentiality of such information).
(c) Expenses. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this Section 2.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 2 shall not be deemed to have been effected (i) unless
a registration statement with respect thereto has become effective, (ii) if,
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
govermental agency or court for any reason, or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied.
Section 3. Incidental Registration. (a) Right to Include
Registrable Securities. If the Company at any time proposes to register any of
its securities under the Securities Act (other than by a registration on Form
S-4, S-8, S-14 or S-15 or any successor or similar forms and other than
pursuant to Section 2 hereof),
2
<PAGE> 3
whether or not for sale for its own account, it will each such time
give prompt written notice to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 3. Upon the
written request of any such holder (a "Requesting Holder") made within 15 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the holders
thereof, to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so to
be registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register.
No registration effected under this Section 3 shall relieve the Company of its
obligation to effect any registration upon request under Section 2 hereof. The
Company will pay all Registration Expenses in connection with each registration
of Registrable Securities requested pursuant to this Section 3.
If the securities being registered by the Company are to be distributed
by or through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities use its best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold
by such holder among the securities to be distributed by such underwriters,
provided that if the managing underwriter of such underwritten offering shall
inform the holders of the Registrable Securities requesting such registration
by letter of its belief that inclusion in such underwritten distribution of all
or a specified number of such Registrable Securities and of any other
securities requested to be included would interfere with the successful
marketing of the securities being registered by the Company (such writing to
state the basis of such belief and the approximate number of such Registrable
Securities and other securities so requested to be offering included which may
be included in such underwritten offering without such effect), then the
Company may, upon written notice to all holders of such Registrable Securities
exclude pro rata from such underwritten offering the number of such Registrable
Securities and shares of such other securities so requested to be included so
that the resultant aggregate number of such Registrable Securities and of such
other securities so requested to be included which are included in such
underwritten offering shall be equal to the approximate number of shares stated
in such managing underwriter's letter pro rata based on the number of shares so
requested to be included.
The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and may, at their option, require that any or all of the
representations and warranties by,
3
<PAGE> 4
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required to
make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
Section 4. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2 and 3 hereof, the
Company shall, as expeditiously as possible:
(i) prepare and (in the case of a registration pursuant to
Section 2 hereof such filing to be made within 30 days after the initial
request of one or more of the Investors) file with the Commission the
requisite registration statement to effect such registration and
thereafter use its best efforts to cause such registration statement to
become and remain effective, provided, however, that the Company
furnish to the counsel selected by the holders of Registrable
Securities which are to be included in such registration copies of
all such documents proposed to be filed, which documents will be
subject to the prior review of such counsel;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement or in the case of a registration pursuant to
Section 3 hereof, the expiration of 90 days after such registration
statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement and each Requesting Holder and each
underwriter, if any, of the securities being sold by such seller such
number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case
4
<PAGE> 5
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as such seller and Requesting Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities owned by such Seller;
(iv) use its best efforts (A) to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities laws or blue sky laws of such jurisdictions as shall
reasonably be requested by such seller and any Requesting Holder, (B) to keep
such registrations or qualifications in effect for so long as such registration
statement remains in effect, and (C) take any other action which may be
reasonably necessary or advisable to enable Requesting Holder or seller to
consummate the disposition in such jurisdictions of the securities owned by
such seller, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not, but for the requirements of this subdivision
(iv), be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition of such Registrable
Securities;
(vi) notify each seller of Registrable Securities covered by such
registration statement and each Requesting Holder, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon the discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, and at the request of any such seller or Requesting Holder
promptly prepare and furnish to such seller or Requesting Holder (and each
underwriter, if any) a rea-
5
<PAGE> 6
sonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first day of the full Calendar Month
after the effective date of such registration statement, if such earnings
statement is necessary to satisfy the provisions of Section ll(a) of the
Securities Act, and will furnish to each such seller and each Requesting
Holder at least five business days (or such shorter reasonable time period
as given circumstances shall dictate) prior to the filing thereof a copy
of any amendment or supplement to such registration statement or
prospectus and shall not file any thereof to which any such seller or any
Requesting Holder shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder; and
(viii) enter into such agreements and take such other actions as
sellers of such Registrable Securities holding more than 50% of the shares
so to be sold shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
Section 5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, each Requesting Holder and their respective counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall be
necessary, in the opinion of such holders' and such underwriters, respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
6
<PAGE> 7
Section 6. Indemnification. (a) Indemnification by the Company. The
Company will, and hereby does, indemnify and hold harmless the holder of any
Registrable Securities covered by any registration statement filed pursuant to
Section 2 or 3 hereof, its directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such holder or any such director or
officer or underwriter or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder, such Requesting Holder and each such director, officer,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such holder, as
the case may be, specifically stating that it is for use in the preparation
thereof and, provided further that the Company shall not be liable to any
Person who participates as an underwriter, in the offering or sale of
Registrable Securities or to any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or
amended, to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus.
(b) Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or
7
<PAGE> 8
proceeding involving a claim referred to in the preceding subdivision of this
Section 6, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivision of this Section 6, except to
the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability, or a covenant not to sue, in respect to such claim
or litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party.
(c) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by the Company with respect to any required
registration or other qualification of securities under any Federal or state
law or regulation of any governmental authority, other than the Securities Act.
(d) Indemnification Payments. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(e) Contribution. If the indemnification provided for in the
preceding subdivisions of this Section 6 is unavailable to an indemnified party
in respect of any expense, loss, damage or liability referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such expense, loss, damage or liability (i) in such proportion as
8
<PAGE> 9
is appropriate to reflect the relative benefits received by the Company on the
one hand and the holder or underwriter, as the case may be, on the other from
the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the holder or underwriter, as the case may be, on the other in
connection with the statements or omissions which resulted in such expense,
loss, damage or liability, as well as any other relevant equitable
considerations.
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this subdivision
(e) were determined by pro rata allocation (even if the holders and any
underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth in the preceding sentence and
subdivisions of this Section 6, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action claim.
Notwithstanding the provisions of this subdivision (e), no holder of
Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
net proceeds received by such holder from the sale of Registrable Securities or
(ii) in the case of an underwiter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Section 7. Rule 144. The Company shall timely file the reports
required to be filed by it under the Securities Act and the Exchange Act
(including but not limited to the reports under Sections 13 and 15(d) of
the Exchange Act referred to in subparagraph (c) (1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, will, upon the request of any holder of Registrable Securities, make
publicly available other information) and will take such further action as any
holder of Registrable Securities
9
<PAGE> 10
may reasonably request, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
Section 8. Assignment. The provisions of this Agreement which are for the
benefit of the Investors shall also be for the benefit of and enforceable by
any subsequent holder of any Registrable Securities.
Section 9. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of more than 50% of the shares of Registrable Securities. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 9, whether or not such
Registrable Securities shall have been marked to indicate such consent.
Section 10. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
Section 11. Notices. Except as otherwise provided in this Agreement, all
communications provided for hereunder shall be in writing and either hand
delivered or sent by prepaid commercial courier, telecopy or first-class
registered or certified mail, postage prepaid, and addressed
if to the Investors: James H. Dahl and
Rock Creek Partners, Ltd.
1200 Gulf Life Drive
Suite 902
Jacksonville, FL 32207
Attention: Arthur L. Cahoon
FAX: 904-393-9003
10
<PAGE> 11
with a copy to: Kirschner, Main, Graham, Tanner &
Demont
One Independent Drive, Suite 2000
Jacksonville, Florida 32202
(Mailing Address):
P.O. Box 1559
Jacksonville, Florida 32201-1559)
Attention: James L. Main, Esq.
FAX: (904) 358-2199
if to any other
holder of Registrable
Securities: The address that such holder shall
have furnished to the Company in
writing, or, until any such other
holder so furnishes to the Company
an address, then to and at the
address of the last holder of such
Registrable Securities who has
furnished an address to the Company
if to the Company: Robert E. Maloney, Jr.
7118 Beech Ridge Trail
Tallahassee, Florida 32312
FAX:904-668-9100
with a copy to: Daniel L. Dinur, Esq.
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, Georgia 30328
FAX: 770-395-3171
or at such other address the Investor or the Company shall have given notice to
other. Notices sent by commercial courier services for next day delivery shall
be deemed given and received the day after they are sent, notices sent by
telecopy shall be deemed given and received the day they are sent, and notices
sent by mail shall be deemed given and received five (5) days after being
mailed as aforesaid.
Section 12. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
Section 13. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of Florida without reference to the principles of conflicts
of laws.
11
<PAGE> 12
Section 14. Termination. This Agreement shall terminate when (i) a
registration statement with respect to the sale of the Registration Securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) the
Registrable Securities shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company, and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force, or (iii) the Registrable Securities shall have ceased
to be outstanding.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year set forth above.
Proactive Technologies, Inc., Rock Creek Partners, Ltd.,
a Delaware Corporation a Florida corporation
By: By:
--------------------------- ---------------------------
Its President Arthur L. Cahoon,
--------------------------- general partner
Attest: By:
---------------------- ---------------------------
Its Secretary James H. Dahl,
--------------------------- general partner
--------------------------
James H. Dahl,
individually
12
<PAGE> 13
EXHIBIT "B"
LITIGATION OF QUINSTONE
Siva Yam & Associates v. QuinStone Industries, Inc. seeking recovery of
commission.
15
<PAGE> 14
EXHIBIT "C"
MATERIAL CHANGES IN QUINSTONE SINCE 7/31/96
"NONE"
16
<PAGE> 15
EXHIBIT "D"
LITIGATION OF PROACTIVE TECHNOLOGIES, INC.
1.) Deocrete of Tampa Bay, Inc. v. Deco-Crete International, Inc.,
and Decocrete Worldwide, Inc.
Complaint served 7/15/96 alleging breach of existing
exclusivity agreement signed between Plaintiff and Decocrete Int'l. Motion to
dismiss filed August 13, 1996. Currently, settlement negotiations are ongoing
to give a new contract with Decocrete Worldwide.
2.) D.C. Marshall Enterprises, Inc. v. Decocrete Int'l, Inc.
Complaint served June 6, 1996 alleging Breach of Contract, and
Misrepresentation against Decocrete Int'l. Motion to Strike Count II for
Misrepresentation and Answer and Affirmative Defenses filed on Count I on June
26, 1996. Action has been dormant since.
<PAGE> 16
EXHIBIT "E"
MATERIAL CHANGES IN PTEK SINCE 3/31/96
"NONE"
<PAGE> 1
Exhibit 99.C
Registration Rights Agreement
This Agreement is entered into by and between James H. Dahl and Rock Creek
Partners, Ltd., a Florida limited partnership (individually, an "Investor" and,
collectively the "Investors") and Proactive Technologies, Inc., a Florida
corporation (the "Company") as of this 16th day of September, 1996.
Section 1. Definitions. As used in this Agreement, unless the context
otherwise requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Common Stock: The shares of Common Stock, par value $.04 per share, of the
Company as existing on the date hereof.
Exchange Act: The Securities Exchange Act of 1934, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular
section of the Exchange Act shall include a reference to the comparable
section, if any, of any such similar Federal statute.
Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof
or a governmental agency.
Registrable Securities: (a) any shares of Common Stock issued pursuant to
the Stock Exchange Agreement between the Investors and the Company dated
September 9, 1996 and (b) securities issued or issuable with respect to
the foregoing by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise.
Registration Expenses: All expenses incident to the Company's performance
of or compliance with Sections 2 and 3 hereof, including, without
limitation, all registration, filing and NASD fees, all fees and expenses
of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, and any fees and disbursements of underwriters customarily
paid by issuers of securities, but excluding underwriting discounts,
commissions, transfer taxes or any other expense of the
<PAGE> 2
Investor, if any.
Requesting Holder: As defined in Section 3 hereof.
Securities Act: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time. References to a particular
section of the Securities Act shall include a reference to the comparable
section, if any, of any such similar Federal statute.
Section 2. Registration on Request. (a) Registration Required. At any time
or from time to time after the date hereof until such time as the Investors
shall be eligible to effect sales pursuant to Rule 144(k) under the Securities
Act or any similar rule or regulation hereafter adopted by the Commission, upon
the written request of one or more of the Investors, the Company shall use its
best efforts to effect the registration under the Securities Act of all the
Investors' Registrable Securities; provided that the Company shall not be
required to effect more than two registrations pursuant to this Section 2 and
shall not be required to complete an effective registration prior to one year
from the date hereof.
(b) Information. The Company agrees to include in any registration
statement filed under this Section 2 all information which holders of
Registrable Securities being registered shall reasonably request (after giving
due regard to the confidentiality of such information).
(c) Expenses. The Company will pay all Registration Expenses in connection
with any registration requested pursuant to this Section 2.
(d) Effective Registration Statement. A registration requested pursuant to
this Section 2 shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become effective, (ii) if,
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason, or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied.
Section 3. Incidental Registration. (a) Right to Include Registrable
Securities. If the Company at any time proposes to register any of its
securities under the Securities Act (other than by a registration on Form S-4,
S-8, S-14 or S-15 or any successor or similar forms and other than pursuant to
Section 2 hereof), whether or not for sale for its own account, it will each
such time
2
<PAGE> 3
give prompt written notice to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 3. Upon the
written request of any such holder (a "Requesting Holder") made within 15 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the holders
thereof, to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so to
be registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register.
No registration effected under this Section 3 shall relieve the Company of its
obligation to effect any registration upon request under Section 2 hereof. The
Company will pay all Registration Expenses in connection with each registration
of Registrable Securities requested pursuant to this Section 3.
If the securities being registered by the Company are to be distributed by
or through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities use its best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold
by such holder among the securities to be distributed by such underwriters,
provided that if the managing underwriter of such underwritten offering shall
inform the holders of the Registrable Securities requesting such registration
by letter of its belief that inclusion in such underwritten distribution of all
or a specified number of such Registrable Securities and of any other
securities requested to be included would interfere with the successful
marketing of the securities being registered by the Company (such writing to
state the basis of such belief and the approximate number of such Registrable
Securities and other securities so requested to be included which may be
included in such underwritten offering without such effect), then the Company
may, upon written notice to all holders of such Registrable Securities exclude
pro rata from such underwritten offering the number of such Registrable
Securities and shares of such other securities so requested to be included so
that the resultant aggregate number of such Registrable Securities and of such
other securities so requested to be included which are included in such
underwritten offering shall be equal to the approximate number of shares stated
in such managing underwriter's letter pro rata based on the number of shares so
requested to be included.
The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the
3
<PAGE> 4
benefit of such underwriters shall also be made to and for the benefit of such
holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. Any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
Section 4. Registration Procedures. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2 and 3 hereof, the
Company shall, as expeditiously as possible:
(i) prepare and (in the case of a registration pursuant to Section 2
hereof such filing to be made within 30 days after the initial request of
one or more of the Investors) file with the Commission the requisite
registration statement to effect such registration and thereafter use its
best efforts to cause such registration statement to become and remain
effective, provided, however, that the Company furnish to the counsel
selected by the holders of Registrable Securities which are to be included
in such registration copies of all such documents proposed to be filed,
which documents will be subject to the prior review of such counsel;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement or in
the case of a registration pursuant to Section 3 hereof, the expiration of
90 days after such registration statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered by such
registration statement and each Requesting Holder and each underwriter, if
any, of the securities being sold by such seller such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the
4
<PAGE> 5
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents, as
such seller and Requesting Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such Seller;
(iv) use its best efforts (A) to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities laws or blue sky laws of such jurisdictions as
shall reasonably be requested by such seller and any Requesting
Holder, (B) to keep such registrations or qualifications in effect for so
long as such registration statement remains in effect, and (C) take any
other action which may be reasonably necessary or advisable to enable
Requesting Holder or seller to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not, but for the requirements of this subdivision (iv), be obligated to be
so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities covered by
such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of Registrable Securities covered by such
registration statement and each Requesting Holder, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon the discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made, and at the request of any
such seller or Requesting Holder promptly prepare and furnish to such
seller or Requesting Holder (and each underwriter, if any) a reasonable
number of copies of a supplement to or an amend-
5
<PAGE> 6
ment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first day of the full calendar month after the
effective date of such registration statement, if such earnings statement
is necessary to satisfy the provisions of Section ll(a) of the Securities
Act, and will furnish to each such seller and each Requesting Holder at
least five business days (or such shorter reasonable time period as given
circumstances shall dictate) prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus and
shall not file any thereof to which any such seller or any Requesting
Holder shall have reasonably objected on the grounds that such amendment
or supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder; and
(viii) enter into such agreements and take such other actions as
sellers of such Registrable Securities holding more than 50% of the shares
so to be sold shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
Section 5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, each Requesting Holder and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
such holders' and such underwriters, respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
6
<PAGE> 7
Section 6. Indemnification. (a) Indemnification by the Company. The
Company will, and hereby does, indemnify and hold harmless the holder of any
Registrable Securities covered by any registration statement filed pursuant to
Section 2 or 3 hereof, its directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such holder or any such director or
officer or underwriter or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder, such Requesting Holder and each such director, officer,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such holder, as
the case may be, specifically stating that it is for use in the preparation
thereof and, provided further that the Company shall not be liable to any
Person who participates as an underwriter, in the offering or sale of
Registrable Securities or to any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or
amended, to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus.
(b) Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or
7
<PAGE> 8
proceeding involving a claim referred to in the preceding subdivision of this
Section 6, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivision of this Section 6, except to
the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability, or a covenant not to sue, in respect to such claim
or litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party.
(c) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 6 (with appropriate modifications)
shall be given by the Company with respect to any required registration or
other qualification of securities under any Federal or state law or regulation
of any governmental authority, other than the Securities Act.
(d) Indemnification Payments. The indemnification required by this Section
6 shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(e) Contribution. If the indemnification provided for in the preceding
subdivisions of this Section 6 is unavailable to an indemnified party in
respect of any expense, loss, damage or liability referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such expense, loss, damage or liability (i) in such proportion as
8
<PAGE> 9
is appropriate to reflect the relative benefits received by the Company on the
one hand and the holder or underwriter, as the case may be, on the other from
the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the holder or underwriter, as the case may be, on the other in
connection with the statements or omissions which resulted in such expense,
loss, damage or liability, as well as any other relevant equitable
considerations.
The Company and the holders of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this subdivision (e) were
determined by Pro rata allocation (even if the holders and any underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in the preceding sentence and subdivisions
of this Section 6, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
Notwithstanding the provisions of this subdivision (e), no holder of
Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
net proceeds received by such holder from the sale of Registrable Securities or
(ii) in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section ll(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Section 7. Rule 144. The Company shall timely file the reports required to
be filed by it under the Securities Act and the Exchange Act (including but not
limited to the reports under Sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder (or, if the Company is not required to file such reports, will, upon
the request of any holder of Registrable Securities, make publicly available
other information) and will take such further action as any holder of
Registrable Securities
9
<PAGE> 10
may reasonably request, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
Section 8. Assignment. The provisions of this Agreement which are for the
benefit of the Investors shall also be for the benefit of and enforceable by
any subsequent holder of any Registrable Securities.
Section 9. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of more than 50% of the shares of Registrable Securities. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 9, whether or not such
Registrable Securities shall have been marked to indicate such consent.
Section 10. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
Section 11. Notices. Except as otherwise provided in this Agreement, all
communications provided for hereunder shall be in writing and either hand
delivered or sent by prepaid commercial courier, telecopy or first-class
registered or certified mail, postage prepaid, and addressed
if to the Investors: James H. Dahl and
Rock Creek Partners, Ltd.
1200 Gulf Life Drive
Suite 902
Jacksonville, FL 32207
Attention: Arthur L. Cahoon
FAX: 904-393-9003
10
<PAGE> 11
with a copy to: Kirschner, Main, Graham, Tanner &
Demont
One Independent Drive, Suite 2000
Jacksonville, Florida 32202
(Mailing Address):
P.O. Box 1559
Jacksonville, Florida 32201-1559
Attention: James L. Main, Esq.
FAX: (904) 358-2199
if to any other
holder of Registrable
Securities: The address that such holder shall
have furnished to the Company in
writing, or, until any such other
holder so furnishes to the Company
an address, then to and at the
address of the last holder of such
Registrable Securities who has
furnished an address to the Company
if to the Company: Robert E. Maloney, Jr.
7118 Beech Ridge Trail
Tallahassee, Florida 32312
FAX:904-668-9100
with a copy to: Daniel L. Dinur, Esq.
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, Georgia 30328
FAX: 770-395-3171
or at such other address the Investor or the Company shall have given notice to
other. Notices sent by commercial courier services for next day delivery shall
be deemed given and received the day after they are sent, notices sent by
telecopy shall be deemed given and received the day they are sent, and notices
sent by mail shall be deemed given and received five (5) days after being
mailed as aforesaid.
Section 12. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
Section 13. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of Florida without reference to the principles of conflicts
of laws.
11
<PAGE> 12
Section 14. Termination. This Agreement shall terminate when (i) a
registration statement with respect to the sale of the Registration Securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) the
Registrable Securities shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company, and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force, or (iii) the Registrable Securities shall have ceased
to be outstanding.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year set forth above.
Proactive Technologies, Inc., Rock Creek Partners, Ltd.,
a Delaware Corporation a Florida limited partnership
By: /s/ X By: /s/ Arthur L. Cahoon,
------------------------------- -------------------------------
Its _____ President Arthur L. Cahoon,
general partner
Attest: /s/ Anne F. Derhman By: /s/ James H. Dahl
--------------------------- -------------------------------
Its _____ Secretary James H. Dahl,
general partner
/s/ James H. Dahl
-------------------------------
James H. Dahl,
individually
12
<PAGE> 13
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement') is entered into this ____ day
of May, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as "Company") and JAMES DAHL, and all others named
holders over which he has voting control, (hereinafter "Seller") being a
shareholders of 74,200 shares of Killearn Properties, Inc. (Hereinafter "KPI").
WHEREAS, Seller is the owner of record and beneficially own Seventy Four
Thousand Two Hundred (74,200) shares of the issued and outstanding shares of
the Common Stock of KPI (the "Shares"); and
WHEREAS, the Seller desires to sell all of these shares of KPI to Buyer,
and Buyer wishes to buy said shares; and
WHEREAS, in consideration of Ten Dollars ($10.00) and 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 Purchase. 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 purchase from Sellers, the shares listed
in Exhibit "A", attached hereto.
1.2 Closing. The purchase shall be consummated at the Closing to take
place at the office of the Buyer on or before May ___, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Purchase Price. The aggregate purchase price ("Purchase Price") for
the shares shall be as follows:
Four (4) shares of Restricted Common Stock of Buyer (Buyer's Restricted
Shares), Proactive Technologies, Inc. ("PTEK") for each share of KPI stock;
Seller has 74,200 shares of KPI stock over which he has voting control, for a
total of TWO HUNDRED NINETY SIX THOUSAND EIGHT HUNDRED (296,800) shares of
Buyer's Restricted Shares.
Seller, at Closing shall by issuance and delivery of Seller's shares to Buyer
and Buyer shall by issuance and delivery of its stock to Seller.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 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 KPI, and attached
as Exhibit "A", 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. The Shares are unrestricted,
free-trading shares of KPI and 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.
1
<PAGE> 14
b. Investment Intent. Seller is acquiring Buyer's Restricted Shares for
his own account, for investment purposes only, and not with a view toward the
sale or distribution of any part thereof, and Seller has no present intention
of selling, granting participation in, or otherwise distributing same. Seller
understands the specific risks related to any investment in the shares of
Buyer, especially as it relates to the financial performance of Buyer.
c. Restricted Shares. Seller understands that Buyer's Restricted Shares
are restricted shares, that they are not registered with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the
"Act"), that the shares cannot be resold unless they are registered under the
Act or unless an exemption from registration is available, and that the shares
will contain a restrictive legend providing for restrictions on the resale of
the shares until they are registered with the SEC under the Act or unless an
exemption from registration is available.
d. Accredited Investor. Seller is an "accredited investor" as used in
section 2(15)(ii) of the Act and has provided Buyer with current financial
statements in support thereof.
e. Buyer's recent SEC filings. Seller understands that Buyer is a public,
reporting company under the Securities and Exchange Act of 1934 and that Buyer
has provided Seller with copies of its recent filings, including its SEC Form
10-KSB dated June 30, 1995, and SEC Forms 10-QSB dated September 30, 1995 and
December 31, 1995.
2.2 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 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 Buyer
consists of 60,000,000 shares of .01 par value Common Stock, of which Eleven
Million, Five Hundred Sixty Two Thousand Seven Hundred and Twelve (11,562,712)
shares have been issued and are outstanding (after giving effect to a one for
four reverse stock split). Buyer's Restricted Shares have been duly
authorized, validly issued, are fully paid and non-assessable with no personal
liability attaching to the ownership thereof and were offered, issued, and sold
and delivered by Buyer in compliance with all applicable state and federal
laws. Except with respect to warrants issued to holders of certain interests,
entitling such holders to purchase such Common Stock at a price of $.50 per
share (before the reverse stock split), as provided in Section 4.1 of Buyer's
Plan of Reorganization approved by the United States Bankruptcy Court for the
Northern District of Oklahoma (the "Bankruptcy Court") on November 21, 195,
Buyer does not have nay outstanding rights, options, warrants, calls,
commitments, conversions, or any other agreements of any character, whether
oral or written, obligating it to issue any shares of its capital stock,
whether authorized or not. Buyer is not a party to any is not bound by any
agreement, contract, arrangement or understanding, whether oral or written,
giving any person or entity any interest in, or any right to share, participate
in or receive any portion of Buyer's income, profits or assets, or obligating
Buyer to distribute any portion of its income, profits or assets.
c. 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
2
<PAGE> 15
performance of the transactions contained herein, conflicts with, requires
the approval of , results in a breach or default hereunder, or gives 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.
d. 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.
e. Buyer's Financial Statements. Buyer's Financial Statement for the
quarter ended March 31, 1996 is in the process of being completed and will be
delivered to the office of Seller when completed. When completed, Buyer's
financial statements will be complete, prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior periods
and will fairly present the financial position of Buyer as of March 31, 1996 on
SEC Form 10-QSB.
f. Full Disclosure. All statements of Buyer contained in this Agreement
and in any other written documents delivered by or on behalf of the Buyer to
the Seller are true and correct in all material respects and do not omit any
material fact necessary to make the statements contained therein not misleading
in light of the circumstances under which they were made. There are no facts
known to Buyer which could have a materially adverse effect upon the business,
financial condition, results of operations, assets, liabilities, or prospects
of Buyer, which have not been disclosed to the Seller in this Agreement.
ARTICLE III.
COVENANTS.
3.1 Covenants of Buyer. Buyer covenants and agrees to perform the
following acts:
a. Registration of Buyer's Restricted Shares. Buyer will file its s-3
Registration Statement with the Securities and Exchange Commission within
ninety (90) days after the Closing to effect the registration of Buyer's
Restricted Shares.
b. Ordinary Course of Business. Buyer will operate its business only in
the ordinary course and will use its best efforts to preserve Buyer's business,
organization, goodwill and relationships with persons having business dealings
with Buyer.
c. Maintain Books. Buyer will maintain its books, accounts and records in
the usual, regular ordinary and sound business manner and in accordance with
generally accepted accounting principles applied on a basis consistent with
past practices.
d. Taxes and Accounting Matters. Buyer will file when due all federal,
state and local tax returns and reports which shall be accurate and complete,
including but not limited to income, franchise, excise, ad valorem, and other
taxes with respect to its business and properties, and tp pay as they become
due all taxes or assessments, except for taxes for which adequate reserves are
established and which are being contested in good faith by appropriate
proceedings. Buyer will not change its accounting methods or practices or any
depreciation, amortization or inventory valuation policies or practices.
e. Due Compliance. Buyer will comply with all laws, regulations, rules
3
<PAGE> 16
and ordinances applicable to it and to the conduct of its business, the
violation of which would have a material adverse effect on Buyer.
ARTICLE III.
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:
3.1 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.
3.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, other 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.
3.3 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.
3.4 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. Such other documents or certificates as shall be reasonably
required by Buyer or its attorney to close or consummate the
transaction.
3.5 Documents to be delivered by Buyer.
A. Buyer shall have delivered to Seller Buyer's Restricted Shares
to be issued at the Closing by Buyer pursuant to his Agreement.
ARTICLE IV.
MISCELLANEOUS
4.1 Modification. Buyer and Seller may amend, modify, or supplement this
Agreement in any manner as they mutually agree only in writing.
4.2 Waivers. Buyer and Seller may in writing extend the time for or waive
compliance by the other with any of the covenants or conditions of the other
contained herein.
4.3 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 and the Buyer.
b. By Buyer, if the representations and warranties of the Sellers set
forth shall not be accurate; or the condition precedents set forth above shall
not have been satisfied in all material respects; or
<PAGE> 17
c. By the Seller, if the representations and warranties of Buyer set
forth herein shall not be accurate, or the conditions precedent set forth above
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.
4.4 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.
4.5 Assignability. Buyer may assign this Agreement only with consent of
Seller.
4.6 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.
4.7 Applicable Law. This Agreement and Transaction is are made pursuant to
and will be construed under, the laws of the State of Delaware.
4.8 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 Seller, to:
James Dahl
____________________
Jacksonville, Florida _______
Telephone: (____) ___________
Fax: (___) ___________
Any change in addresses may be made provided written notice is given to the
other parties.
4.9 Headings. The headings contained herein are for reference only and do
not affect in any way the meaning or interpretation of this agreement.
4.10 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.
4.11 Counterparts. This Agreement may be executed in counterparts,
5
<PAGE> 18
each of which will be deemed an original and all of which together will
constitute one instrument.
4.12 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.
4.13 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.
4.14 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.
4.15 Public Announcements. No party shall issue any public announcements
or news releases relating to the transactions without the prior written consent
of the other party to this Agreement, except as required by law.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
"BUYER"
PROACTIVE TECHNOLOGIES, INC.
By:__________________________
Mark A. Conner, President
"SELLER"
JAMES H. DAHL, as owner and controller of
KPI votes under street names
By:____________________________
James H. Dahl
6
<PAGE> 1
EXHIBIT 99.D
FIRST ADDENDUM TO STOCK PURCHASE AGREEMENT
This First Addendum to Stock Purchase Agreement ("Agreement") is
entered into this ____ day of July, 1996, by and among PROACTIVE TECHNOLOGIES,
INC., a Delaware corporation (hereinafter referred to as "Company") and JAMES
DAHL, and all others named holders over which he has voting control,
(hereinafter "Seller") being a shareholders of 81,700 shares of Killearn
Properties, Inc. (Hereinafter "KPI") and is intended to modify that certain
Stock Purchase Agreement entered into between the parties on May 20, 1996.
To the extent that this Addendum and the Stock Purchase Agreement
conflict, this Addendum is said to control. Except as modified the terms and
conditions as set forth in the Stock Purchase Agreement shall remain in full
force and effect.
1.) Company will be furnishing, and Seller agrees to accept, its
Three Hundred Twenty Six Thousand Eight Hundred (326,800) shares of PTE stock
as follows:
James H. Dahl, IRA 139,600
James H. And Georgia P. Dahl, JTWROS 80,000
Rock Creek Partners, Ltd. 107,200
each with a restrictive legend indicating that the shares are "restrictive
securities" as defined under Rule 144 of the Securities Act of 1933.
2.) Company hereby agrees to utilize all deliberate reasonable
speed to register these shares with the Securities and Exchange Commission by
filing a registration statement or filing an exemption from registration for
these shares under the Act. In the event that these shares are not registered
by July 31, 1997, Company agrees to issue Ninety Eight Thousand Forty (98,040)
additional shares to Seller as just compensation for non registration.
3.) The parties agree that the above shares may still be subject to
additional securities laws on the transferability of same should Seller be
named and accept his position as director or officer of the Company.
4.) The Closing date of this transaction shall be deemed to be
August 7, 1996, unless otherwise mutually agreed upon by the parties.
5.) The rest and remainder of said agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
"SELLER" "COMPANY"
JAMES H. DAHL, as owner and controller PROACTIVE TECHNOLOGIES, INC.
of KPI votes under all related names held
By:
--------------------------
Mark A. Conner, President
By:
---------------------------
James H. Dahl
James H. Dahl, IRA
James H. Dahl, GP Rock Creek Partners, Ltd.
By:
--------------------------
Georgia P. Dahl
<PAGE> 1
EXHIBIT 99.E
JOINT FILING AGREEMENT
This Joint Filing Agreement (the "Agreement") is entered into this
25th day of September, 1996 between James H. Dahl and Rock Creek Partners,
Ltd. (collectively the "Parties").
WHEREAS, a Statement on Schedule 13D (the "Schedule") for filing with
the Securities Exchange Commission was prepared on behalf of the Parties with
respect to beneficial ownership of shares in Proactive Technologies, Inc.; and
WHEREAS, the Parties wish to confirm that the Schedule is to be filed
on behalf of each of the Parties.
NOW THEREFORE, it is agreed that the Schedule is the statement of each
of the undersigned, and that the information therein is true, complete, and
correct to the best of their knowledge.
Dated: September 25, 1996.
/s/ JAMES H. DAHL
-------------------------------
JAMES H. DAHL
ROCK CREEK PARTNERS, LTD.,
A FLORIDA LIMITED PARTNERSHIP
By: /s/ James H. Dahl
--------------------------
James H. Dahl
Managing General Partner
