<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D/A
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13D-2(A)
(AMENDMENT NO. 2)*
flightserv.com
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.04 par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
339428 10 4
- --------------------------------------------------------------------------------
(CUSIP Number)
Edward J. Hardin
Rogers & Hardin LLP
2700 International Tower, Peachtree Center
229 Peachtree Street, N.E.
Atlanta, Georgia 30303-1601
Tel No.: 404-522-4700
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
March 31, 1999
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
[ ].
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7)
- -----------------------
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE> 2
CUSIP NO. 339428 10 4 PAGE 2 OF 7 PAGES
SCHEDULE 13D/A
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ARTHUR G. WEISS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- ------------------- ------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,250,000 (1)
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
------------------------------------------------------
8 SHARED VOTING POWER
0
------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,250,000 (1)
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,250,000 (1)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
(1) Includes 700,000 shares which the Reporting Person has he right to
acquire pursuant to options granted to the Reporting Person
(discussed in Item 6).
<PAGE> 3
CUSIP NO. 339428 10 4 PAGE 3 OF 7 PAGES
- ---------- ---------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CAROLINE WEISS KYRIOPOULOS
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [ ]
(B) [ ]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
BK
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- ------------------------- ------- ----------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 1,775,000 (1)
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
------- ----------------------------------------------
8 SHARED VOTING POWER
688,000 (2)
------- ----------------------------------------------
9 SOLE DISPOSITIVE POWER
1,775,000 (1)
------- ----------------------------------------------
10 SHARED DISPOSITIVE POWER
688,000 (2)
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,463,000 (1), (2)
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ---------- ---------------------------------------------------------------------
(1) Includes 1,000,000 shares which the Reporting Person has he right to
acquire pursuant to the Option Agreement (discussed in Item 5(c)
below).
(2) These shares are owned by K&L Partnership, of which the Reporting
Person is a one-half general partner.
<PAGE> 4
CUSIP NO. 339428 10 4 PAGE 4 OF 7 PAGES
- ---------- ---------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CHARLES G. WEISS
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [ ]
(B) [ ]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- ------------------------- ------- ----------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 775,000
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
------- ----------------------------------------------
8 SHARED VOTING POWER
0
------- ----------------------------------------------
9 SOLE DISPOSITIVE POWER
775,000
------- ----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
775,000
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 5
CUSIP NO. 339428 10 4 PAGE 5 OF 7 PAGES
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
AMENDMENT NO. 2 TO SCHEDULE 13D
This Amendment No. 2 to Schedule 13D relates to the shares of common
stock, par value $0.04 per share ("Common Stock"), issued by flightserv.com (the
"Company"), the principal executive offices of which are located at 3343
Peachtree Road, N.E. Suite 530, Atlanta, Georgia 30326. Items 1, 3, 5 and 7 of
the Schedule 13D filed by Arthur G. Weiss, Caroline Weiss Kyriopoulos and
Charles G. Weiss (each a "Reporting Person" and together the "Reporting
Persons") on January 11, 1999, as amended by Amendment No. 1 to Schedule 13D
filed by the Reporting Persons on March 12, 1999, are amended and restated as
set forth below.
Item 1. SECURITY AND ISSUER
The title of the class of equity securities to which this
Schedule relates is common stock, par value $.04 per share
(the "Common Stock"), issued by flightserv.com (f/k/a
Proactive Technologies, Inc., the "Company"), the principal
executive offices of which are located at 3343 Peachtree Road,
N.E. Suite 530, Atlanta, Georgia 30326.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is hereby amended as follows:
Caroline Weiss Kyriopoulos owns a 50% general partnership
interest in K&L Partnership ("K&L"), a Georgia general
partnership. On or about March 31, 1999, K&L acquired an
option to purchase 500,000 shares of Common Stock from Mr.
Mark Conner at an exercise price of $.40 per share for an
aggregate purchase price of $200,000. On May 11, 1999, CCC
Partnership as nominee for K&L, entered into options to
purchase 38,000 and 150,000 shares of Common Stock from Mr. J.
T. Williams, Jr. at an exercise price of $1.25 per share. K&L
exercised the 500,000 and 38,000 share options for aggregate
consideration of $250,125 on June 29, 1999 and the 150,000
share option for aggregate consideration of $187,500 on July
20, 1999. The funds to effect the exercise of the 500,000 and
38,000 share options were borrowed from Georgia State Bank by
K&L in a $250,125, 8.75% interest loan due December 26, 1999
(the "Georgia State Loan"). The funds to effect the exercise
of the 150,000 share option were borrowed from SunTrust Bank,
Northeast Georgia NA by K&L in a $187,600, 8% interest loan
due August 19, 1999 (the "SunTrust Loan"). The Georgia State
Loan is secured by the 500,000 shares purchased from Mr.
Conner and an additional 1,550,000 shares owned by Mr. Arthur
G. Weiss, the Company's Chairman, and is guaranteed by Mr.
Weiss. The SunTrust Loan is secured by an interest in all of
K&L's right, title and interest in all monies, instruments,
savings, checking and other accounts of K&L that are now or in
the future in SunTrust's control.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Arthur G. Weiss is the beneficial owner of 2,250,000 shares of
Common Stock (approximately 7.9%), 700,000 of such shares are
shares which Mr. Weiss has the right to acquire pursuant to
options granted to him (discussed in Item 6 hereof) to acquire
shares from the Company. The percentage of outstanding shares
of the Common Stock for Mr. Weiss has been computed based on a
total of 23,188,245 shares of Common Stock indicated as
outstanding in the Company's Proxy Statement dated March 29,
1999 relating to the Annual Meeting of Stockholders held on
April 21, 1999, as adjusted to reflect issuance of 4,600,000
shares of Common Stock issued on or about June 29, 1999 and
the assumed exercise of the 700,000 presently exercisable
options held by Mr. Weiss. Mr. Weiss holds options for an
aggregate of an additional 2,700,000 shares the grant of which
are subject to shareholder approval and acceptance by the
American Stock Exchange for additional listing and as a result
such options are not exercisable within the next 60 days.
Caroline Weiss Kyriopoulos is the beneficial owner of
2,463,000 shares of Common Stock (approximately 8.9%)
including (i) 1,000,000 shares of Common Stock which she has
the right to acquire pursuant to an immediately exercisable
option (described in Item 5(c) hereof) to acquire shares from
Mark Conner and (ii) 688,000 shares of Common Stock owned by
K&L. The percentage of outstanding shares of the Common Stock
for Ms. Kyriopoulos has been computed based on a total of
23,188,245 shares of Common Stock indicated as outstanding in
the Company's Proxy Statement dated March 29, 1999 relating to
the Annual Meeting of Stockholders held on April 21, 1999, as
adjusted to reflect issuance of 4,600,000 shares of Common
Stock issued on or about June 29, 1999.
<PAGE> 6
CUSIP NO. 339428 10 4 PAGE 6 OF 7 PAGES
Charles G. Weiss is the beneficial owner of 775,000 shares of
Common Stock (approximately 2.79%). The percentage of
outstanding shares of the Common Stock for Mr. Weiss has been
computed based on a total of 23,188,245 shares of Common Stock
indicated as outstanding in the Company's Proxy Statement
dated March 29, 1999 relating to the Annual Meeting of
Stockholders held on April 21, 1999, as adjusted to reflect
issuance of 4,600,000 shares of Common Stock issued on or
about June 29, 1999.
Caroline Weiss Kyriopoulos and Charles G. Weiss are the adult
children of Arthur G. Weiss. Each of Arthur G. Weiss, Caroline
Weiss Kyriopoulos and Charles G. Weiss disclaim any beneficial
ownership of the shares of Common Stock owned by the others.
The Reporting Persons acquired an aggregate of 3,100,000
shares of Common Stock pursuant to the terms of the
Reorganization Agreement in exchange for their ownership
interests in West Side Investors, Inc., but none of the
Reporting Persons currently has any agreement for the purpose
of acquiring, holding, voting or disposing of any shares of
Common Stock with either of the other Reporting Persons.
(b) Arthur G. Weiss has the direct power to vote and direct the
disposition of 2,250,000 shares of Common Stock. Caroline
Weiss Kyriopoulos has the direct power to vote and direct the
disposition of 775,000 shares of Common Stock and has the
power to direct the disposition of the Option Agreement, but
Mark Conner retains the direct power to vote the shares
subject to the Option Agreement until such time as the option
is exercised. Caroline Weiss Kyriopoulos also has the shared
power to vote and dispose of the 688,000 shares of Common
Stock owned by K&L, of which she is a general partner. Charles
G. Weiss has the direct power to vote and direct the
disposition of 775,000 shares of Common Stock.
(c) As discussed in Item 3 above, on March 31, 1999, K&L, of which
Caroline Weiss Kyriopoulos is a general partner, acquired an
option to purchase 500,000 shares of Common Stock from Mr.
Mark Conner. On May 11, 1999, K&L, through CCC Partnership,
its nominee, received options to purchase 38,000 and 150,000
shares of Common Stock from Mr. J. T. Williams, Jr. On June
29, 1999, K&L exercised the option to purchase 38,000 shares
of Common Stock from Mr. Williams for $1.25 per share and
exercised the option to purchase 500,000 shares of Common
Stock from Mr. Conner for $.40 per share. On July 20, 1999,
K&L exercised the option to purchase 150,000 shares from Mr.
Williams for $1.25 per share.
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is amended to include the following Exhibits:
99.4 Common Stock Purchase Option dated March 31, 1999
99.5 Common Stock Purchase Option dated May 11, 1999
99.6 Common Stock Purchase Option dated May 11, 1999
99.7 Promissory Note for $250,125 dated June 29, 1999
99.8 Promissory Note for $187,600 dated July 19, 1999
99.9 Confirming Statement
99.10 Confirming Statement
99.11 Joint Filing Agreement
<PAGE> 7
CUSIP NO. 339428 10 4 PAGE 7 OF 7 PAGES
SIGNATURES
After reasonable inquiry each of the undersigned certifies that to the
best of his knowledge and belief the information set forth in this statement is
true, complete and correct.
/s/ Arthur G. Weiss July 23, 1999
- ----------------------------------------- ----------------
Arthur G. Weiss Date
/s/ Arthur G. Weiss July 23, 1999
- ----------------------------------------- ----------------
Arthur G. Weiss, as Attorney in Fact for Date
Caroline Weiss Kyriopoulos
/s/ Arthur G. Weiss July 23, 1999
- ----------------------------------------- ----------------
Arthur G. Weiss, as Attorney in Fact for Date
Charles G. Weiss
<PAGE> 1
EXHIBIT 99.4
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
-------------------------
COMMON STOCK PURCHASE OPTION
500,000 Shares
Original Issue Date: March 31, 1999
THIS CERTIFIES THAT, FOR VALUE RECEIVED, the undersigned K & L
Partnership or assigns (the "Holder") is entitled to purchase, on the terms and
conditions hereinafter set forth, Five Hundred Thousand (500,000) shares of the
Common Stock, $.04 par value (the "Common Stock"), of Proactive Technologies,
Inc., a Delaware corporation (the "Company"), at an exercise price of $.40 per
share (the "Exercise Price"), from Mark A. Conner ("Grantor"). Each share of
Common Stock as to which this Option is exercisable is a "Option Share", and all
such shares are collectively referred to as the "Option Shares."
SECTION 1. EXERCISE OF OPTION.
(a) This Option may be exercised in whole or in part, from time to
time, on and after the Original Issue Date, and on or before 5:00 p.m., Eastern
Time on June 30, 1999 (the "Expiration Date"), by delivery to the Grantor at
Grantor's office at: Tallahassee, Florida, of (i) a written notice in the form
of the Notice of Exercise attached hereto, properly executed and completed by or
on behalf of the Holder, (ii) a check payable to the order of the Grantor, in an
amount equal to the product of the Exercise Price multiplied by the number of
Option Shares specified in the Exercise Notice, and (iii) this Option (the items
specified in (i), (ii), and (iii) are collectively the "Exercise Materials").
(b) Upon timely receipt of the Exercise Materials, the Grantor shall,
as promptly as practicable, and in any event within three (3) business days
after Grantor's receipt of the Exercise Materials, cause to be executed and
delivered to Holder a certificate or certificates representing the number of
Option Shares specified in the Exercise Notice, together with cash in lieu of
any fraction of a share, as hereinafter provided, and, (x) if the Option is
exercised in full, a copy of this Option marked "Exercised," or (y) if the
Option is partially exercised, a copy of this Option marked "Partially
Exercised" together with a new Option on the same terms for the unexercised
balance of the Option Shares. All of the certificates evidencing Option Shares
shall bear the legend set forth in Section 4 hereof. The stock certificate or
certificates shall be registered in the name of the Holder of this Option or
such other name as shall be designated in the Exercise Notice. As between Holder
and Grantee, the date on which the Option shall be deemed to have been exercised
(the "Exercise Date"), and the date the person in whose name any
<PAGE> 2
certificate for Option Shares is issued shall be deemed to have become the
holder of record of such shares, shall be the date the Grantor receives the
Exercise Materials, irrespective of the date of delivery by Grantor or the
Company of a certificate or certificates evidencing the Option Shares to Holder.
(c) All shares of Common Stock delivered by Grantor upon the exercise
of this Option will, upon issuance, be fully paid and nonassessable and free
from all taxes, liens, and charges with respect thereto.
SECTION 2. ADJUSTMENTS TO OPTION SHARES. The number of Option Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets of
the Company to, any person, or in the case of any consolidation or merger of
another corporation into the Company in which the Company is the surviving
corporation, and in which there is a reclassification or change of the shares of
Common Stock of the Company, this Option shall after such consolidation, share
exchange, merger, or sale be exercisable for the kind and number of securities
or amount and kind of property of the Company or the corporation or other entity
resulting from such share exchange, merger, or consolidation, or which such sale
shall be made, as the case may be (the "Successor Company"), to which a holder
of the number of shares of Common Stock deliverable upon the exercise
(immediately prior to the time of such consolidation, share exchange, merger, or
sale) of this Option would have been entitled upon such consolidation, share
exchange, merger, or sale; and in any such case appropriate adjustments shall be
made in the application of the provisions set forth herein with respect to the
rights and interest of the Holder of this Option, such that the provisions set
forth herein shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to the number and kind of securities or the type
and amount of property thereafter deliverable upon the exercise of this Option.
The above provisions shall similarly apply to successive consolidations, share
exchanges, mergers, and sales. Any adjustment required by this Section 2(a)
because of a consolidation, share exchange, merger, or sale shall be set forth
in an undertaking delivered to the Holder of this Option and executed by the
Grantor which provides that the Holder of this Option shall have the right to
exercise this Option for the kind and number of securities or amount and kind of
property of the Successor Company or to which the holder of a number of shares
of Common Stock deliverable upon exercise (immediately prior to the time of such
consolidation, share exchange, merger, or sale) of this Option would have been
entitled upon such consolidation, share exchange, merger, or sale. Such
undertaking shall also provide for future adjustments to the number of Option
Shares and the Exercise Price in accordance with the provisions set forth in
this Section 2.
(b) In the event the Company should at any time, or from time to time
after the Original Issue Date, fix a record date for the effectuation of a stock
split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock, or securities or
rights convertible into, or entitling the holder thereof to receive directly
2
<PAGE> 3
or indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or
exercise thereof), then, as of such record date (or the date of such dividend,
distribution, split, or subdivision if no record date is fixed), the number of
Option Shares deliverable upon the exercise hereof shall be proportionately
increased and the Exercise Price shall be appropriately decreased by the same
proportion as the increase in the number of outstanding Common Stock Equivalents
of the Company resulting from the dividend, distribution, split, or subdivision.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number of
outstanding shares of Common Stock of the Company, then, as of such record date
(or the date of such reverse stock split or similar transaction if no record
date is fixed), the number of Option Shares deliverable upon the exercise hereof
shall be proportionately decreased and the Exercise Price shall be appropriately
increased by the same proportion as the decrease of the number of outstanding
Common Stock Equivalents resulting from the reverse stock split or similar
transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of its
Common Stock, then, as of such record date (or the date of the reclassification
if no record date is set), this Option shall thereafter be convertible into such
number and kind of securities as would have been deliverable as the result of
such reclassification to a holder of a number of shares of Common Stock equal to
the number of Option Shares deliverable upon exercise of this Option immediately
prior to such reclassification, and the Exercise Price shall be unchanged.
(e) When any adjustment is required to be made in the number or kind of
shares purchasable upon exercise of this Option, or in the Exercise Price, the
Grantor shall promptly notify the Holder of such event and of the number of
shares of Common Stock or other securities or property thereafter purchasable
upon exercise of this Option and of the Exercise Price, together with the
computation resulting in such adjustment.
(f) The Grantee covenants and agrees that all Option Shares which may
be issued will, upon delivery, be validly issued, fully paid and non-assessable.
SECTION 3. GRANTOR REPRESENTATIONS.
(a) Grantor now has and on each Option Exercise Date will have valid
marketable title to the Option Shares free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest other than pursuant
to this agreement; upon delivery of such Option Shares hereunder and payment of
the purchase price as herein contemplated Holder will obtain valid marketable
title to the Option Shares free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest, including any liability for
estate or inheritance taxes, or any liability to or claims of any creditor,
devisee legatee or beneficiary of Grantor.
3
<PAGE> 4
(b) All consents, approvals, authorizations and orders required for the
execution and delivery by Grantor of this agreement and the sale and delivery of
the Option Shares to be sold by Grantor pursuant to this Agreement have been
obtained and are in full force and effect, and Grantor has full legal right,
power, authority and enter into and perform Grantor's obligation under this
agreement and to sell, assign, transfer and deliver the Option Shares to be sold
by Grantor hereunder.
(c) This agreement has been duly executed and delivered by Grantor and
is a valid and binding agreement of Grantor, enforceable in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' priced generally or by general equitable principles; and
the performance of this agreement with consummation of the transaction herein
contemplated will not result in a material breach or a violation of any of the
terms and provisions of or constitute a default under any material bond,
debenture, note or other evidence of indebtedness, or under any material
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which Grantor's a party or which by Grantor or
any of the options shares to be sold hereunder may be bound or, result in any
violation of any law or order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over Grantor or properties of Grantor.
(d) Grantor has reviewed all of the filings made by the company with
the Securities and Exchange Commission in the last 12 months. There are no
material misstatements or omissions in any such filings.
SECTION 4. TRANSFER OF SECURITIES.
(a) This Option and the Option Shares and any shares of capital stock
received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon, or otherwise, shall not be
transferable except upon compliance with the provisions of the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities laws
with respect to the transfer of such securities. The Holder of this Option, by
acceptance of this Option, agrees to be bound by the provisions of Sections 4
and 5 and to indemnify and hold harmless the Grantor against any loss or
liability arising from the disposition of this Option or the Option Shares
issuable upon exercise hereof or any interest in either thereof in violation of
the provisions of this Option.
(b) Each certificate for the Option Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate (unless otherwise permitted by the provisions hereof) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
Legend for Option Shares or other shares of capital stock:
4
<PAGE> 5
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
(c) Holder recognizes and understands that this Option and the Option
Shares have not been and may not be in the future registered under the
Securities Act of 1933, as amended (the "Act"), the Georgia Securities Act of
1973, as amended (the "Georgia Act"), or any other state securities law. Any
transfer of this Option (and once exercised, the Option Shares) may not be
recognized by the Company unless such transfer is registered under the Act, the
Georgia Act, and any other applicable state securities laws or effected pursuant
to an exemption from such registration which may then be available. Any share
certificates representing the Option Shares may be stamped with legends
restricting transfer thereof in accordance with the Company's policy with
respect to unregistered shares of its Common Stock.
(d) Holder is acquiring this Option solely for Holder's own account for
investment and not with a view to or for sale or distribution of the Option or
any Option Shares and not with any present intention of selling, offering to
sell, or otherwise disposing of or distributing the option or any Option Shares.
The entire legal and beneficial interest of the option and the Option Shares are
for and will be held for the account of the Holder only and neither in whole not
in part for any other person.
SECTION 5. MISCELLANEOUS.
(a) The terms of this Option shall be binding upon and shall inure to
the benefit of any successors or assigns of the Grantor and the holder or
holders hereof and of the Common Stock issued or issuable upon the exercise
hereof.
(b) Except as otherwise provided herein, this Option and all rights
hereunder are transferable by the Holder in person or by duly authorized
attorney upon surrender of this Option, properly endorsed, to the Grantor. The
Grantor may deem and treat the Holder of this Option at any time as the absolute
owner hereof for all purposes and shall not be affected by any notice to the
contrary.
(c) Notwithstanding any provision herein to the contrary, the holder
hereof may not exercise, sell, transfer or otherwise assign this Option unless
the Grantor and the Company are provided with an opinion of counsel reasonably
satisfactory in form and substance to the Grantor, to the effect that such
exercise, sale, transfer or assignment would not violate the Securities Act or
applicable state securities laws.
(d) This Option may be divided into separate Options covering one share
of the Common Stock or any whole multiple thereof, for the total number of
shares of Common Stock then subject to this Option at any time, or from time to
time, upon the request of the
5
<PAGE> 6
holder of this Option and the surrender of the same to the Grantor for such
purpose. Such subdivided Options shall be issued promptly by the Grantor
following any such request and shall be of the same form and tenor as this
Option, except for any requested change in the name of the holder stated herein.
(e) All notices, requests, demands, and other communications required
or permitted under this Option and the transactions contemplated herein shall be
in writing and shall be deemed to have been duly given, made, and received (i)
when personally delivered, (ii) the day after deposited with a recognized
national overnight delivery service prior to its dead-line for receiving
packages for next day delivery or (iii) upon the fifth day after deposited in
the United States registered or certified mail with postage prepaid, return
receipt requested, in each case addressed as set forth below:
If to the Grantor: Mark A. Conner
2500 Deer Lake Road
Tallahassee, FL 32312
If to the Holder hereof, to the address set forth below:
K & L Partnership
ATTN: C. Frank Moore
366 Powder Spring Street
Marietta, GA 30064
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia without consideration of the conflict of
laws rules thereof. The parties hereto agree that any appropriate state court
located in Fulton County, Georgia, or any Federal Court sitting in the Northern
District of Georgia, Atlanta Division, shall have exclusive jurisdiction of any
case or controversy arising under or in connection with this Agreement and shall
be a proper forum in which to adjudicate such case or controversy. The parties
hereto consent to the jurisdiction of such courts.
(g) Upon receipt of evidence reasonably satisfactory to the Grantor of
the loss, theft, mutilation or destruction of this Option, and in case of loss,
theft or destruction, upon the agreement of the Optionholder to indemnify
Grantor against any claims arising in connection with such lost, stolen or
destroyed Option, or in the case of mutilation, upon surrender and cancellation
of this Option, Grantor shall issue a new Option of like denomination and tenor
as the Option so lost, stolen, mutilated or destroyed.
(h) In the event any one or more of the provisions of this Option shall
for any reason be held invalid, illegal or unenforceable, the remaining
provisions of this Option shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a valid, legal and enforceable
provision, which comes closest to the intention underlying the invalid, illegal
or unenforceable provision.
6
<PAGE> 7
IN WITNESS WHEREOF, the Grantor has caused this Option to be executed,
and to be dated as of the date first above written.
GRANTOR: WITNESS:
Name: Name:
------------------------- --------------------------
MARK A. CONNER ROBERT E. MALONEY, JR.
HOLDER:
----------------------------------
K&L PARTNERSHIP
Name: C. Frank Moore, Trustee
Address: 366 Powder Springs Street
Marietta, GA 30064
7
<PAGE> 1
EXHIBIT 99.5
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
-------------------------
COMMON STOCK PURCHASE OPTION
150,000 Shares
Original Issue Date: May 11, 1999
THIS CERTIFIES THAT, FOR VALUE RECEIVED, the undersigned CCC
Partnership or assigns (the "Holder") is entitled to purchase, on the terms and
conditions hereinafter set forth, One Hundred Fifty Thousand (150,000) shares of
the Common Stock, $0.04 par value (the "Common Stock"), of Proactive
Technologies, a Delaware corporation (the "Company"), at an exercise price of
$1.25 per share (the "Exercise Price"), from J. T. Williams, Jr. ("Grantor").
Each share of Common Stock as to which this Option is exercisable is a "Option
Share", and all such shares are collectively referred to as the "Option Shares."
SECTION 1. EXERCISE OF OPTION.
(a) This Option may be exercised in whole or in part, from time to
time, on and after the Original Issue Date, and on or before 5:00 p.m., Eastern
Time on July 20, 1999 (the "Expiration Date"), by delivery to the Grantor at
Grantor's office at: 135 Waterfall Farms Drive - Clayton, Georgia 30525, of (i)
a written notice in the form of the Notice of Exercise attached hereto, properly
executed and completed by or on behalf of the Holder, (ii) a check payable to
the order of the Grantor, in an amount equal to the product of the Exercise
Price multiplied by the number of Option Shares specified in the Exercise
Notice, and (iii) this Option (the items specified in (i), (ii), and (iii) are
collectively the "Exercise Materials").
(b) Upon timely receipt of the Exercise Materials, the Grantor shall,
as promptly as practicable, and in any event within three (3) business days
after Grantor's receipt of the Exercise Materials, cause to be executed and
delivered to Holder a certificate or certificates representing the number of
Option Shares specified in the Exercise Notice, together with cash in lieu of
any fraction of a share, as hereinafter provided, and, (x) if the Option is
exercised in full, a copy of this Option marked "Exercised," or (y) if the
Option is partially exercised, a copy of this Option marked "Partially
Exercised" together with a new Option on the same terms for the unexercised
balance of the Option Shares. All of the certificates evidencing Option Shares
shall bear the legend set forth in Section 4 hereof. The stock certificate or
certificates shall be registered in the name of the Holder of this Option or
such other name as shall be designated in the Exercise Notice. As between Holder
and Grantee, the date on which the Option shall be deemed to have been exercised
(the "Exercise Date"), and the date the person in whose name any
<PAGE> 2
certificate for Option Shares is issued shall be deemed to have become the
holder of record of such shares, shall be the date the Grantor receives the
Exercise Materials, irrespective of the date of delivery by Grantor or the
Company of a certificate or certificates evidencing the Option Shares to Holder.
(c) All shares of Common Stock delivered by Grantor upon the exercise
of this Option will, upon issuance, be fully paid and nonassessable and free
from all taxes, liens, and charges with respect thereto.
SECTION 2. ADJUSTMENTS TO OPTION SHARES. The number of Option Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets of
the Company to, any person, or in the case of any consolidation or merger of
another corporation into the Company in which the Company is the surviving
corporation, and in which there is a reclassification or change of the shares of
Common Stock of the Company, this Option shall after such consolidation, share
exchange, merger, or sale be exercisable for the kind and number of securities
or amount and kind of property of the Company or the corporation or other entity
resulting from such share exchange, merger, or consolidation, or which such sale
shall be made, as the case may be (the "Successor Company"), to which a holder
of the number of shares of Common Stock deliverable upon the exercise
(immediately prior to the time of such consolidation, share exchange, merger, or
sale) of this Option would have been entitled upon such consolidation, share
exchange, merger, or sale; and in any such case appropriate adjustments shall be
made in the application of the provisions set forth herein with respect to the
rights and interest of the Holder of this Option, such that the provisions set
forth herein shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to the number and kind of securities or the type
and amount of property thereafter deliverable upon the exercise of this Option.
The above provisions shall similarly apply to successive consolidations, share
exchanges, mergers, and sales. Any adjustment required by this Section 2(a)
because of a consolidation, share exchange, merger, or sale shall be set forth
in an undertaking delivered to the Holder of this Option and executed by the
Grantor which provides that the Holder of this Option shall have the right to
exercise this Option for the kind and number of securities or amount and kind of
property of the Successor Company or to which the holder of a number of shares
of Common Stock deliverable upon exercise (immediately prior to the time of such
consolidation, share exchange, merger, or sale) of this Option would have been
entitled upon such consolidation, share exchange, merger, or sale. Such
undertaking shall also provide for future adjustments to the number of Option
Shares and the Exercise Price in accordance with the provisions set forth in
this Section 2.
(b) In the event the Company should at any time, or from time to time
after the Original Issue Date, fix a record date for the effectuation of a stock
split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock, or securities or
rights convertible into, or entitling the holder thereof to receive directly
2
<PAGE> 3
or indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or
exercise thereof), then, as of such record date (or the date of such dividend,
distribution, split, or subdivision if no record date is fixed), the number of
Option Shares deliverable upon the exercise hereof shall be proportionately
increased and the Exercise Price shall be appropriately decreased by the same
proportion as the increase in the number of outstanding Common Stock Equivalents
of the Company resulting from the dividend, distribution, split, or subdivision.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number of
outstanding shares of Common Stock of the Company, then, as of such record date
(or the date of such reverse stock split or similar transaction if no record
date is fixed), the number of Option Shares deliverable upon the exercise hereof
shall be proportionately decreased and the Exercise Price shall be appropriately
increased by the same proportion as the decrease of the number of outstanding
Common Stock Equivalents resulting from the reverse stock split or similar
transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of its
Common Stock, then, as of such record date (or the date of the reclassification
if no record date is set), this Option shall thereafter be convertible into such
number and kind of securities as would have been deliverable as the result of
such reclassification to a holder of a number of shares of Common Stock equal to
the number of Option Shares deliverable upon exercise of this Option immediately
prior to such reclassification, and the Exercise Price shall be unchanged.
(e) When any adjustment is required to be made in the number or kind of
shares purchasable upon exercise of this Option, or in the Exercise Price, the
Grantor shall promptly notify the Holder of such event and of the number of
shares of Common Stock or other securities or property thereafter purchasable
upon exercise of this Option and of the Exercise Price, together with the
computation resulting in such adjustment.
(f) The Grantee covenants and agrees that all Option Shares which may
be issued will, upon delivery, be validly issued, fully paid and non-assessable.
SECTION 3. GRANTOR REPRESENTATIONS.
(a) Grantor now has and on each Option Exercise Date will have valid
marketable title to the Option Shares free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest other than pursuant
to this agreement; upon delivery of such Option Shares hereunder and payment of
the purchase price as herein contemplated Holder will obtain valid marketable
title to the Option Shares free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest, including any liability for
estate or inheritance taxes, or any liability to or claims of any creditor,
devisee legatee or beneficiary of Grantor.
3
<PAGE> 4
(b) All consents, approvals, authorizations and orders required for the
execution and delivery by Grantor of this agreement and the sale and delivery of
the Option Shares to be sold by Grantor pursuant to this Agreement have been
obtained and are in full force and effect, and Grantor has full legal right,
power, authority and enter into and perform Grantor's obligation under this
agreement and to sell, assign, transfer and deliver the Option Shares to be sold
by Grantor hereunder.
(c) This agreement has been duly executed and delivered by Grantor and
is a valid and binding agreement of Grantor, enforceable in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' priced generally or by general equitable principles; and
the performance of this agreement with consummation of the transaction herein
contemplated will not result in a material breach or a violation of any of the
terms and provisions of or constitute a default under any material bond,
debenture, note or other evidence of indebtedness, or under any material
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which Grantor's a party or which by Grantor or
any of the options shares to be sold hereunder may be bound or, result in any
violation of any law or order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over Grantor or properties of Grantor.
(d) Grantor has reviewed all of the filings made by the company with
the Securities and Exchange Commission in the last 12 months. There are no
material misstatements or omissions in any such filings.
SECTION 4. TRANSFER OF SECURITIES.
(a) This Option and the Option Shares and any shares of capital stock
received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon, or otherwise, shall not be
transferable except upon compliance with the provisions of the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities laws
with respect to the transfer of such securities. The Holder of this Option, by
acceptance of this Option, agrees to be bound by the provisions of Sections 4
and 5 and to indemnify and hold harmless the Grantor against any loss or
liability arising from the disposition of this Option or the Option Shares
issuable upon exercise hereof or any interest in either thereof in violation of
the provisions of this Option.
(b) Each certificate for the Option Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate (unless otherwise permitted by the provisions hereof) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
Legend for Option Shares or other shares of capital stock:
4
<PAGE> 5
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
(c) Holder recognizes and understands that this Option and the Option
Shares have not been and may not be in the future registered under the
Securities Act of 1933, as amended (the "Act"), the Georgia Securities Act of
1973, as amended (the "Georgia Act"), or any other state securities law. Any
transfer of this Option (and once exercised, the Option Shares) may not be
recognized by the Company unless such transfer is registered under the Act, the
Georgia Act, and any other applicable state securities laws or effected pursuant
to an exemption from such registration which may then be available. Any share
certificates representing the Option Shares may be stamped with legends
restricting transfer thereof in accordance with the Company's policy with
respect to unregistered shares of its Common Stock.
(d) Holder is acquiring this Option solely for Holder's own account for
investment and not with a view to or for sale or distribution of the Option or
any Option Shares and not with any present intention of selling, offering to
sell, or otherwise disposing of or distributing the option or any Option Shares.
The entire legal and beneficial interest of the option and the Option Shares are
for and will be held for the account of the Holder only and neither in whole not
in part for any other person.
SECTION 5. MISCELLANEOUS.
(a) The terms of this Option shall be binding upon and shall inure to
the benefit of any successors or assigns of the Grantor and the holder or
holders hereof and of the Common Stock issued or issuable upon the exercise
hereof.
(b) Except as otherwise provided herein, this Option and all rights
hereunder are transferable by the Holder in person or by duly authorized
attorney upon surrender of this Option, properly endorsed, to the Grantor. The
Grantor may deem and treat the Holder of this Option at any time as the absolute
owner hereof for all purposes and shall not be affected by any notice to the
contrary.
(c) Notwithstanding any provision herein to the contrary, the holder
hereof may not exercise, sell, transfer or otherwise assign this Option unless
the Grantor and the Company are provided with an opinion of counsel reasonably
satisfactory in form and substance to the Grantor, to the effect that such
exercise, sale, transfer or assignment would not violate the Securities Act or
applicable state securities laws.
(d) This Option may be divided into separate Options covering one share
of the Common Stock or any whole multiple thereof, for the total number of
shares of Common Stock then subject to this Option at any time, or from time to
time, upon the request of the
5
<PAGE> 6
holder of this Option and the surrender of the same to the Grantor for such
purpose. Such subdivided Options shall be issued promptly by the Grantor
following any such request and shall be of the same form and tenor as this
Option, except for any requested change in the name of the holder stated herein.
(e) All notices, requests, demands, and other communications required
or permitted under this Option and the transactions contemplated herein shall be
in writing and shall be deemed to have been duly given, made, and received (i)
when personally delivered, (ii) the day after deposited with a recognized
national overnight delivery service prior to its dead-line for receiving
packages for next day delivery or (iii) upon the fifth day after deposited in
the United States registered or certified mail with postage prepaid, return
receipt requested, in each case addressed as set forth below:
If to the Grantor: J. T. Williams, Jr.
Waterfall Country Club
135 Waterfall Farms Drive
Clayton, Georgia 30525
If to the Holder hereof, to the address set forth below:
CCC Partnership
366 Powder Springs Street
Marietta, Georgia 30064
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia without consideration of the conflict of
laws rules thereof. The parties hereto agree that any appropriate state court
located in Fulton County, Georgia, or any Federal Court sitting in the Northern
District of Georgia, Atlanta Division, shall have exclusive jurisdiction of any
case or controversy arising under or in connection with this Agreement and shall
be a proper forum in which to adjudicate such case or controversy. The parties
hereto consent to the jurisdiction of such courts.
(g) Upon receipt of evidence reasonably satisfactory to the Grantor of
the loss, theft, mutilation or destruction of this Option, and in case of loss,
theft or destruction, upon the agreement of the Optionholder to indemnify
Grantor against any claims arising in connection with such lost, stolen or
destroyed Option, or in the case of mutilation, upon surrender and cancellation
of this Option, Grantor shall issue a new Option of like denomination and tenor
as the Option so lost, stolen, mutilated or destroyed.
(h) In the event any one or more of the provisions of this Option shall
for any reason be held invalid, illegal or unenforceable, the remaining
provisions of this Option shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a valid, legal and enforceable
provision, which comes closest to the intention underlying the invalid, illegal
or unenforceable provision.
6
<PAGE> 7
IN WITNESS WHEREOF, the Grantor has caused this Option to be executed,
and to be dated as of the date first above written.
GRANTOR: WITNESS:
Name: Name:
-------------------------- ------------------------
J. T. WILLIAMS, JR.
HOLDER:
----------------------------------
CCC PARTNERSHIP
Name: Arthur G. Weiss
Address: 366 Powder Springs Street
Marietta, GA 30064
7
<PAGE> 1
EXHIBIT 99.6
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
-------------------------
COMMON STOCK PURCHASE OPTION
38,000 Shares
Original Issue Date: May 11, 1999
THIS CERTIFIES THAT, FOR VALUE RECEIVED, the undersigned CCC
Partnership or assigns (the "Holder") is entitled to purchase, on the terms and
conditions hereinafter set forth, Thirty Eight Thousand (38,000) shares of the
Common Stock, $0.04 par value (the "Common Stock"), of Proactive Technologies, a
Delaware corporation (the "Company"), at an exercise price of $1.25 per share
(the "Exercise Price"), from J. T. Williams, Jr. ("Grantor"). Each share of
Common Stock as to which this Option is exercisable is a "Option Share", and all
such shares are collectively referred to as the "Option Shares."
SECTION 1. EXERCISE OF OPTION.
(a) This Option may be exercised in whole or in part, from time to
time, on and after the Original Issue Date, and on or before 5:00 p.m., Eastern
Time on June 30, 1999 (the "Expiration Date"), by delivery to the Grantor at
Grantor's office at: 135 Waterfall Farms Drive - Clayton, Georgia 30525, of (i)
a written notice in the form of the Notice of Exercise attached hereto, properly
executed and completed by or on behalf of the Holder, (ii) a check payable to
the order of the Grantor, in an amount equal to the product of the Exercise
Price multiplied by the number of Option Shares specified in the Exercise
Notice, and (iii) this Option (the items specified in (i), (ii), and (iii) are
collectively the "Exercise Materials").
(b) Upon timely receipt of the Exercise Materials, the Grantor shall,
as promptly as practicable, and in any event within three (3) business days
after Grantor's receipt of the Exercise Materials, cause to be executed and
delivered to Holder a certificate or certificates representing the number of
Option Shares specified in the Exercise Notice, together with cash in lieu of
any fraction of a share, as hereinafter provided, and, (x) if the Option is
exercised in full, a copy of this Option marked "Exercised," or (y) if the
Option is partially exercised, a copy of this Option marked "Partially
Exercised" together with a new Option on the same terms for the unexercised
balance of the Option Shares. All of the certificates evidencing Option Shares
shall bear the legend set forth in Section 4 hereof. The stock certificate or
certificates shall be registered in the name of the Holder of this Option or
such other name as shall be designated in the Exercise Notice. As between Holder
and Grantee, the date on which the Option shall be deemed to have been exercised
(the "Exercise Date"), and the date the person in whose name any
<PAGE> 2
certificate for Option Shares is issued shall be deemed to have become the
holder of record of such shares, shall be the date the Grantor receives the
Exercise Materials, irrespective of the date of delivery by Grantor or the
Company of a certificate or certificates evidencing the Option Shares to Holder.
(c) All shares of Common Stock delivered by Grantor upon the exercise
of this Option will, upon issuance, be fully paid and nonassessable and free
from all taxes, liens, and charges with respect thereto.
SECTION 2. ADJUSTMENTS TO OPTION SHARES. The number of Option Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets of
the Company to, any person, or in the case of any consolidation or merger of
another corporation into the Company in which the Company is the surviving
corporation, and in which there is a reclassification or change of the shares of
Common Stock of the Company, this Option shall after such consolidation, share
exchange, merger, or sale be exercisable for the kind and number of securities
or amount and kind of property of the Company or the corporation or other entity
resulting from such share exchange, merger, or consolidation, or which such sale
shall be made, as the case may be (the "Successor Company"), to which a holder
of the number of shares of Common Stock deliverable upon the exercise
(immediately prior to the time of such consolidation, share exchange, merger, or
sale) of this Option would have been entitled upon such consolidation, share
exchange, merger, or sale; and in any such case appropriate adjustments shall be
made in the application of the provisions set forth herein with respect to the
rights and interest of the Holder of this Option, such that the provisions set
forth herein shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to the number and kind of securities or the type
and amount of property thereafter deliverable upon the exercise of this Option.
The above provisions shall similarly apply to successive consolidations, share
exchanges, mergers, and sales. Any adjustment required by this Section 2(a)
because of a consolidation, share exchange, merger, or sale shall be set forth
in an undertaking delivered to the Holder of this Option and executed by the
Grantor which provides that the Holder of this Option shall have the right to
exercise this Option for the kind and number of securities or amount and kind of
property of the Successor Company or to which the holder of a number of shares
of Common Stock deliverable upon exercise (immediately prior to the time of such
consolidation, share exchange, merger, or sale) of this Option would have been
entitled upon such consolidation, share exchange, merger, or sale. Such
undertaking shall also provide for future adjustments to the number of Option
Shares and the Exercise Price in accordance with the provisions set forth in
this Section 2.
(b) In the event the Company should at any time, or from time to time
after the Original Issue Date, fix a record date for the effectuation of a stock
split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock, or securities or
rights convertible into, or entitling the holder thereof to receive directly
2
<PAGE> 3
or indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or
exercise thereof), then, as of such record date (or the date of such dividend,
distribution, split, or subdivision if no record date is fixed), the number of
Option Shares deliverable upon the exercise hereof shall be proportionately
increased and the Exercise Price shall be appropriately decreased by the same
proportion as the increase in the number of outstanding Common Stock Equivalents
of the Company resulting from the dividend, distribution, split, or subdivision.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number of
outstanding shares of Common Stock of the Company, then, as of such record date
(or the date of such reverse stock split or similar transaction if no record
date is fixed), the number of Option Shares deliverable upon the exercise hereof
shall be proportionately decreased and the Exercise Price shall be appropriately
increased by the same proportion as the decrease of the number of outstanding
Common Stock Equivalents resulting from the reverse stock split or similar
transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of its
Common Stock, then, as of such record date (or the date of the reclassification
if no record date is set), this Option shall thereafter be convertible into such
number and kind of securities as would have been deliverable as the result of
such reclassification to a holder of a number of shares of Common Stock equal to
the number of Option Shares deliverable upon exercise of this Option immediately
prior to such reclassification, and the Exercise Price shall be unchanged.
(e) When any adjustment is required to be made in the number or kind of
shares purchasable upon exercise of this Option, or in the Exercise Price, the
Grantor shall promptly notify the Holder of such event and of the number of
shares of Common Stock or other securities or property thereafter purchasable
upon exercise of this Option and of the Exercise Price, together with the
computation resulting in such adjustment.
(f) The Grantee covenants and agrees that all Option Shares which may
be issued will, upon delivery, be validly issued, fully paid and non-assessable.
SECTION 3. GRANTOR REPRESENTATIONS.
(a) Grantor now has and on each Option Exercise Date will have valid
marketable title to the Option Shares free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest other than pursuant
to this agreement; upon delivery of such Option Shares hereunder and payment of
the purchase price as herein contemplated Holder will obtain valid marketable
title to the Option Shares free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest, including any liability for
estate or inheritance taxes, or any liability to or claims of any creditor,
devisee legatee or beneficiary of Grantor.
3
<PAGE> 4
(b) All consents, approvals, authorizations and orders required for the
execution and delivery by Grantor of this agreement and the sale and delivery of
the Option Shares to be sold by Grantor pursuant to this Agreement have been
obtained and are in full force and effect, and Grantor has full legal right,
power, authority and enter into and perform Grantor's obligation under this
agreement and to sell, assign, transfer and deliver the Option Shares to be sold
by Grantor hereunder.
(c) This agreement has been duly executed and delivered by Grantor and
is a valid and binding agreement of Grantor, enforceable in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' priced generally or by general equitable principles; and
the performance of this agreement with consummation of the transaction herein
contemplated will not result in a material breach or a violation of any of the
terms and provisions of or constitute a default under any material bond,
debenture, note or other evidence of indebtedness, or under any material
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which Grantor's a party or which by Grantor or
any of the options shares to be sold hereunder may be bound or, result in any
violation of any law or order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over Grantor or properties of Grantor.
(d) Grantor has reviewed all of the filings made by the company with
the Securities and Exchange Commission in the last 12 months. There are no
material misstatements or omissions in any such filings.
SECTION 4. TRANSFER OF SECURITIES.
(a) This Option and the Option Shares and any shares of capital stock
received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon, or otherwise, shall not be
transferable except upon compliance with the provisions of the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities laws
with respect to the transfer of such securities. The Holder of this Option, by
acceptance of this Option, agrees to be bound by the provisions of Sections 4
and 5 and to indemnify and hold harmless the Grantor against any loss or
liability arising from the disposition of this Option or the Option Shares
issuable upon exercise hereof or any interest in either thereof in violation of
the provisions of this Option.
(b) Each certificate for the Option Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate (unless otherwise permitted by the provisions hereof) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
Legend for Option Shares or other shares of capital stock:
4
<PAGE> 5
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
(c) Holder recognizes and understands that this Option and the Option
Shares have not been and may not be in the future registered under the
Securities Act of 1933, as amended (the "Act"), the Georgia Securities Act of
1973, as amended (the "Georgia Act"), or any other state securities law. Any
transfer of this Option (and once exercised, the Option Shares) may not be
recognized by the Company unless such transfer is registered under the Act, the
Georgia Act, and any other applicable state securities laws or effected pursuant
to an exemption from such registration which may then be available. Any share
certificates representing the Option Shares may be stamped with legends
restricting transfer thereof in accordance with the Company's policy with
respect to unregistered shares of its Common Stock.
(d) Holder is acquiring this Option solely for Holder's own account for
investment and not with a view to or for sale or distribution of the Option or
any Option Shares and not with any present intention of selling, offering to
sell, or otherwise disposing of or distributing the option or any Option Shares.
The entire legal and beneficial interest of the option and the Option Shares are
for and will be held for the account of the Holder only and neither in whole not
in part for any other person.
SECTION 5. MISCELLANEOUS.
(a) The terms of this Option shall be binding upon and shall inure to
the benefit of any successors or assigns of the Grantor and the holder or
holders hereof and of the Common Stock issued or issuable upon the exercise
hereof.
(b) Except as otherwise provided herein, this Option and all rights
hereunder are transferable by the Holder in person or by duly authorized
attorney upon surrender of this Option, properly endorsed, to the Grantor. The
Grantor may deem and treat the Holder of this Option at any time as the absolute
owner hereof for all purposes and shall not be affected by any notice to the
contrary.
(c) Notwithstanding any provision herein to the contrary, the holder
hereof may not exercise, sell, transfer or otherwise assign this Option unless
the Grantor and the Company are provided with an opinion of counsel reasonably
satisfactory in form and substance to the Grantor, to the effect that such
exercise, sale, transfer or assignment would not violate the Securities Act or
applicable state securities laws.
(d) This Option may be divided into separate Options covering one share
of the Common Stock or any whole multiple thereof, for the total number of
shares of Common Stock then subject to this Option at any time, or from time to
time, upon the request of the
5
<PAGE> 6
holder of this Option and the surrender of the same to the Grantor for such
purpose. Such subdivided Options shall be issued promptly by the Grantor
following any such request and shall be of the same form and tenor as this
Option, except for any requested change in the name of the holder stated herein.
(e) All notices, requests, demands, and other communications required
or permitted under this Option and the transactions contemplated herein shall be
in writing and shall be deemed to have been duly given, made, and received (i)
when personally delivered, (ii) the day after deposited with a recognized
national overnight delivery service prior to its dead-line for receiving
packages for next day delivery or (iii) upon the fifth day after deposited in
the United States registered or certified mail with postage prepaid, return
receipt requested, in each case addressed as set forth below:
If to the Grantor: J. T. Williams, Jr.
Waterfall Country Club
135 Waterfall Farms Drive
Clayton, Georgia 30525
If to the Holder hereof, to the address set forth below:
CCC Partnership
366 Powder Springs Street
Marietta, Georgia 30064
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia without consideration of the conflict of
laws rules thereof. The parties hereto agree that any appropriate state court
located in Fulton County, Georgia, or any Federal Court sitting in the Northern
District of Georgia, Atlanta Division, shall have exclusive jurisdiction of any
case or controversy arising under or in connection with this Agreement and shall
be a proper forum in which to adjudicate such case or controversy. The parties
hereto consent to the jurisdiction of such courts.
(g) Upon receipt of evidence reasonably satisfactory to the Grantor of
the loss, theft, mutilation or destruction of this Option, and in case of loss,
theft or destruction, upon the agreement of the Optionholder to indemnify
Grantor against any claims arising in connection with such lost, stolen or
destroyed Option, or in the case of mutilation, upon surrender and cancellation
of this Option, Grantor shall issue a new Option of like denomination and tenor
as the Option so lost, stolen, mutilated or destroyed.
(h) In the event any one or more of the provisions of this Option shall
for any reason be held invalid, illegal or unenforceable, the remaining
provisions of this Option shall be unimpaired, and the invalid, illegal or
unenforceable provision shall be replaced by a valid, legal and enforceable
provision, which comes closest to the intention underlying the invalid, illegal
or unenforceable provision.
6
<PAGE> 7
IN WITNESS WHEREOF, the Grantor has caused this Option to be executed,
and to be dated as of the date first above written.
GRANTOR: WITNESS:
Name: Name:
----------------------------- -----------------------------
J. T. WILLIAMS, JR.
HOLDER:
----------------------------------
CCC PARTNERSHIP
Name: Arthur G. Weiss
Address: 366 Powder Springs Street
Marietta, GA 30064
7
<PAGE> 1
EXHIBIT 99.7
Borrower's Name and Address ("I" includes each borrower below, joint and
severally): K&L
Partnership, 366 Powder Springs Street, Marietta, GA 30064
Lender's Name and Address ("You" means the lender, its successors and assigns):
Georgia
State Bank, 620 Fontaine Road S.W., P.O. Box 278, Mableton, GA 30126
Loan Number____________________________________________________________________
Date: June 29, 1999
Maturity Date: December 26, 1999
Loan Amount: $250,125.00
Renewal of New
For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of Two Hundred Fifty Thousand One Hundred Twenty
Five And No/100 Dollars $250,125.00
[X] SINGLE ADVANCE: I will receive all of this principal sum on June 29, 1999.
No additional advances are contemplated under this note.
[ ] MULTIPLE ADVANCE: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On _______________ I will receive
the amount of $_______________ and future principal advance are
contemplated.
Conditions: The conditions for future advances are________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
[ ] OPEN END CREDIT: You and I agree that I may borrow up to the maximum
amount of principal more than one time. This feature is subject to
all other conditions and expires on _______________.
[ ] CLOSED END CREDIT: You and I agree that I may borrow up to the
maximum only one time (and subject to all other conditions).
INTEREST: I agree to pay interest on the outstanding principal balance from
June 29, 1999 at the rate of 8.750% per year until December 26, 1999.
<PAGE> 2
[ ] VARIABLE RATE: This rate may then change as stated below.
[ ] INDEX RATE: The future rate will be __________ the following index
rate:________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
[ ] NO INDEX: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
[ ] FREQUENCY AND TIMING: The rate on this note may change as often as___
____________________________________________________________________.
A change in the interest rate will take effect___________________________.
[ ] LIMITATIONS: during the term of this loan, the applicable annual
interest rate will not be more than _____% or less than _____%. The
rate may not change more than _____% each _____.
EFFECT OF VARIABLE RATE: A change in the interest rate will have the
following effect on the payments.
<TABLE>
<S> <C> <C> <C>
[ ] The amount of each scheduled [X] The amount of the final payment
payment will change. will change.
</TABLE>
[ ]
_____________________________________________________________________
ACCRUAL METHOD: Interest will be calculated on a actual/360 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note
owing after maturity, and until paid in full, as stated below:
[X] on the same fixed or variable rate basis in effect before maturity
(as indicated above).
[ ] at a rate equal to__________________________________________________.
[X] LATE CHARGE: If a payment is made more than 10 days after it is due, I
agree to pay a late charge of 10.000% of the late payment with a minimum
of $10.00 and a maximum of $50.00.
[X] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which, [X] are [ ] are not included in the principal
amount above: Loan Fee $125.00.
<PAGE> 3
PAYMENTS: I agree to pay this note as follows:
[X] INTEREST: I agree to pay accrued interest at maturity_____________________
__________________________________________________________________________
[X] PRINCIPAL: I agree to pay the principal December 26, 1999_________________
__________________________________________________________________________
[ ] INSTALLMENTS: I agree to pay this note in ____________ payments. The first
payment will be in the amount of $____________ and will be due___________.
A payment of $______________ will be due__________________________________
_______________________________________________________________thereafter.
The final payment of the entire unpaid balance of principal and interest
will be due _____________________________________________________________.
[ ] If checked, and this loan is secured b a first lien on real estate, then
any accrued interest not paid when due (whether due by reason of a
schedule of payments or due because of lenders demand) will become part of
the principal thereafter, and will bear interest at the interest rate in
effect from time to time provided for in this agreement.
ADDITIONAL TERMS:
I agree to pay a loan fee of $125.00 late charges: 10.00% of the payment if
over 10 days late; not to exceed $50.00, minimum charge $10.00.
Security: 1,550,000 shares Proactive Technologies, Inc. Stock Certificate
#DEN0907 and 500,000 shares Proactive Technologies stock to be issued to K&L
Partnership & Guaranty of Arthur Weiss.
[ ] SECURITY: This note is separately secured by (describe separate document
by type and date):________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(This section is for your internal use. Failure to list a separate
security document does not mean the agreement will not secure this note.)
Signature for Lender
X
______________________________________________________________________________
______________________________________________________________________________
PURPOSE: The purpose of this loan is Business: Business Investment.
<PAGE> 4
SIGNATURES AND SEALS: IN WITNESS WHEREOF, I HAVE SIGNED MY NAME AND AFFIXED MY
SEAL ON THIS 29TH DAY OF JUNE. BY DOING SO, I AGREE TO THE TERMS OF THIS NOTE
(INCLUDING THOSE ON PAGE _____). I HAVE RECEIVED A COPY ON TODAY'S DATE.
K&L PARTNERSHIP 58-2475728 (Seal)
- ------------------------------------------------------------------------
BY: (Seal)
---------------------------------------------------------------------
C. FRANK MOORE, TRUSTEE
BY: (Seal)
---------------------------------------------------------------------
C. FRANK MOORE
(Seal)
- ------------------------------------------------------------------------
KFT 024 NEW CT:0309.02 P:60
<PAGE> 5
DEFINITIONS: As used an page _____, "[X]" means the terms that apply to this
loan. "I," "me, or "my" means each Borrower who signs this note and each other
person or legal entity (including guarantors, endorsers, and sureties) who
agrees to pay this note (together referred to as "us"). "You" or "your" means
the Lender and its successors and assigns.
APPLICABLE LAW: The law of the state of Georgia will govern this note. Any term
of this note which is contrary to applicable law will not be effective, unless
the law permits you and me to agree to such a variation, If any provision of
this agreement cannot be enforced according to its terms, this fact will riot
affect the enforceability of the remainder of this agreement. No modification
of this agreement may be made without your express written consent. Time is of
the essence in this agreement.
PAYMENTS: Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of each
payment will then reduce accrued unpaid interest, and then unpaid principal. If
you and I agree to a different application of payments, we will describe our
agreement on this note. I may prepay a part of, or the entire balance of this
loan without penalty, unless we specify to the contrary on this note. Any
partial prepayment will not excuse or reduce any later scheduled payment until
this note is paid in full (unless, when I make the prepayment, you and I agree
in writing to the contrary).
INTEREST: Interest accrues on the principal remaining unpaid from time to time,
until paid in full. If I receive the principal in more than one advance, each
advance will start to earn interest only when I receive the advance. The
interest rate in effect an this note at any given time will apply to the entire
principal advanced at that time. You and I may provide in this agreement for
accrued interest not paid when due to be added to principal. Notwithstanding
anything to the contrary, I do not agree to pay and you do not intend to charge
tiny rate of interest that is higher then the maximum rate of interest you
could charge under applicable law for the extension of credit that is agreed to
here (either before or after maturity]. If any notice of interest accrual is
sent and is in error, we mutually agree to correct it, and if you actually
collect more interest then allowed by law and this agreement, you agree to
refund it to me.
INDEX RATE: The index will serve only as a device for setting the rate on this
note. You do not guarantee by selecting this index, or the margin, that the
rate an this note will be the same rate you charge on any other loans or class
of loans to me or other borrowers.
ACCRUAL METHOD: The amount of interest that I will pay an this loan will be
calculated using the interest rate and accrual method stated on page _____ of
this note. For the purpose of interest calculation, the accrual method will
determine the number of days in a "year". If no accrual method is stated, then
you may use any reasonable accrual method for calculating interest.
POST MATURITY RATE: For purposes of deciding when the "Post Maturity Rate"
(shown on page _____) applies, the term "maturity" means the date of the lost
scheduled
<PAGE> 6
payment indicated on page _____ of this note or the date you accelerate payment
on the note, whichever is earlier.
SINGLE ADVANCE LOANS: If this is a single advance loan, you and I expert that
you will make only one advance of principal. However, you may add other amounts
To the principal if you make any payments described in the "PAYMENTS BY LENDER"
paragraph below, or if we have agreed that accrued interest not paid when due
may be added to principal.
MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, you expect that you
will make more than one advance of principal. If closed end credit, repaying a
part of the principal will not entitle me to additional credit.
PAYMENTS BY LENDER: If you are authorized to charges t am obligated to pay
(such as property insurance premiums, then you may treat those Payments made by
you as advances and add them to the unpaid principal under this note, or you
may demand immediate payment of the charges.
SET-OFF: I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you:
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your
possession for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you are set off. This total includes any balance the due date for which
you properly accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to my interest in the
obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right at set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not apply
to any individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to
hold you harmless from any such claims arising as a result of your exercise of
your right of set-off.
REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real estate or a
residence that is personal property, the existence of a default and your
remedies for such a
<PAGE> 7
default will be determined by applicable by law, by the terms of any separate
instrument creating the security interest and, to the extent not prohibited by
law and not contrary to the terms of the separate security instrument, by the
"Default" and "Remedies" paragraphs herein.
DEFAULT: I will be in default if any one or more of the following occur: (1) I
fail to make a payment on time or in the amount due; (2) I fail to keep the
property insured, if required; (3) I fail to pay, or keep any promise, an any
debt or agreement I have with you; (4) any other creditor of mine attempts to
collect any debt I owe him through court proceedings; (5) I die, am declared
incompetent, make an assignment for benefit of creditors, or become insolvent
(either because my liabilities exceed my assets or I am unable to pay my debts
as they become due); (6) I make any written statement or provide any financial
information that is untrue or inaccurate at the time it was provided; (7) I do
or fail to do something which causes you to believe that you will have
difficulty collecting the amount I owe you; (8) any collateral securing this
note is used in a manner or for a purpose which threatens confiscation by a
legal authority; (9) I change my name or assume an additional name without
first notifying you before making such a change; (10) I fail to plant,
cultivate and harvest crops in due season; (11) any loan proceeds are used for
a purpose that will contribute to excessive erosion of highly erodible land or
to the conversion of wetlands to produce an agricultural commodity, as further
explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M.
REMEDIES: If I am in default on this note you have, but are not limited to, the
following remedies:
(1) You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other accrued charges).
(2) You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "Set-Off" paragraph
herein.
(3) You may demand security, additional security, or additional parties
to be obligated to pay this note as a condition for not using other
remedy.
(4) You may refuse to make advances to me or allow purchases on credit by
me.
(5) You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies you do not give up your right to
later use any other remedy. By waiving your right to declare an event to be a
default, you do not waive your right to later consider the event as a default
if it continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of collection,
replevin or any other similar type of cost if I am in default. In addition, if
you hire an attorney to collect this note, I also agree to pay any fee, not to
exceed 15 percent of the principal and interest then owed, you incur with such
attorney plus court costs (except where prohibited by law). To the extent
permitted by the United States Bankruptcy Code, I
<PAGE> 8
also agree to pay the reasonable attorney's fees and costs you incur to collect
this debt as awarded by any court exercising jurisdiction under the Bankruptcy
Code.
WAIVER: I give up my rights to require you to do certain things. I will not
require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official certification of nonpayment (protest);
(3) give notice that amounts due have not been paid (notice of dishonor);
or
(4) give me notice prior to seizure of my personal property when you are
seeking to foreclose a secured interest in any of my personal
property used to secure a commercial transaction.
I waive any defenses I have based on suretyship or impairment of
collateral.
OBLIGATIONS INDEPENDENT: I understand that I must pay this note even if someone
else has also agreed to pay it (by, for example, signing this form or a
separate guarantee or endorsement). You may sue me alone, or anyone else who is
obligated on this note, or any number of us together, to collect this note. You
may do so without any notice that it has not been paid (notice of dishonor).
You may without notice release any party to this agreement without releasing
any other party. If you give up any rights, with or without notice, it will not
affect my duty to pay this note. Any extension of new credit to any of us, or
renewal of this note by all or less than all of us will not release me from my
duty to pay it. (Of course, you are entitled to only one payment in full.) I
agree that you may at your option extend this note or the debt represented by
this note, or any portion of the note or debt, from time to time without limit
or notice and for any term without affecting my liability for payment of the
note. I will not assign my obligation under this agreement without your prior
written approval.
CREDIT INFORMATION: I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and to
report to others your credit experience with me (such as a credit reporting
agency). I agree to provide you, upon request, any financial statement or
information you may deem necessary. I warrant that the financial statements and
information I provide to you are or will be accurate, correct and complete.
NOTICE: Unless otherwise required by law, any notice to me shall be given by
delivering it or by mailing it by first class mail addressed to me at my last
known address. My current address in on page _____. I agree to inform you in
writing of any change in my address. I will give any notice to you by mailing
it first class to your address stated on page _____ of this agreement, or to
any other address than you have designated.
<PAGE> 9
<TABLE>
<CAPTION>
- ------------------ ------------ ---------------- ------------ ------------ -------------- -------------- -------------
DATE OF PRINCIPAL BORROWER'S PRINCIPAL PRINCIPAL INTEREST RATE INTEREST INTEREST
TRANSACTION ADVANCE INITIALS (not PAYMENTS BALANCE PAYMENTS PAID
required) THROUGH:
- ------------------ ------------ ---------------- ------------ ------------ -------------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------ ------------ ---------------- ------------ ------------ -------------- -------------- -------------
- ------------------ ------------ ---------------- ------------ ------------ -------------- -------------- -------------
</TABLE>
<PAGE> 10
SECURITY AGREEMENT
(COLLATERAL PLEDGE AGREEMENT)
Date __________________________________________________________________________
Debtor K&L Partnership 58-2475728
Business or Residence Address 366 Powder Springs Street
City, State and Zip Code Marietta, GA 30064
Secured Party Georgia State Bank
Business or Residence Address 620 Fontaine Road S.W. P.O. Box 278
City, State and Zip Code Mableton, GA 30126
1. SECURITY INTEREST AND COLLATERAL. To secure (check one):
[X] the payment and performance of each and every debt, liability
and obligation of every type and description which debtor may
now or at any time hereafter owe to Secured Party (whether such
debt, liability or obligation now exists or is hereafter created
or incurred, and whether it is or may be direct or indirect, due
or to become due, absolute or contingent, primary or secondary,
liquidated or unliquidated, or joint, several or joint and
several; all such debts, liabilities and obligations being
herein collectively referred to as the "Obligations"),
[ ] the debt, liability or obligation of the Debtor to secured party
evidenced by the following:_____________________________________
_______________________________, and any extensions, renewals or
replacements thereof (herein referred to as the "Obligations"),
Debtor hereby grants Secured Party's security interest (herein
called the "Security Interest") in (check one):
[ } all property of any kind now or at any time hereafter owned by
Debtor, or in which Debtor may now or hereafter have an
interest, which may now be or may at any time hereafter come
into possession or control of Secured Party or into possession
or control of Secured Party's agents or correspondents, whether
such possession or control is given for collateral purposes or
for safekeeping, together with all rights in connection with
such property (herein called the "Collateral").
[X] the property owned by Debtor and held by Secured Party that is
described as follows: 1,550,000 shares Proactive Technologies,
Inc. stock issued to Arthur
<PAGE> 11
Weiss & 500 shares Proactive Technologies, Inc. stock to be
issued to K&L Partnership together with all rights in connection
with such property (herein called the "Collateral").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Debtor represents,
warrants and covenants that:
(a) Debtor will duly endorse, in blank, each and every instrument
constituting Collateral by signing on said instrument or by
signing a separate document of assignment or transfer, if
required by Secured Party.
(b) Debtor is the owner of the Collateral free and clear of all
liens, encumbrances, security interests and restrictions, except
the Security Interest and any restrictive legend appearing on
any instrument constituting Collateral.
(c) Debtor will keep the collateral free and clear of all liens,
encumbrances and security interests, except the Security
Interest.
(d) Debtor will pay, when due, all taxes and other governmental
charges levied or assessed upon or against any Collateral.
(e) At any time upon request by Secured Party, Debtor will deliver
to Secured Party all notices, financial statements, reports or
other communications received by Debtor as an owner or holder of
the Collateral.
(f) Debtor will upon receipt deliver to Secured Party in pledge as
additional Collateral all securities distributed on account of
the Collateral such as stock dividends and securities resulting
from stock splits, reorganizations and recapitalizations.
THIS AGREEMENT CONTAINS ADDITIONAL PROVISIONS
SET FORTH ON PAGE _____ HEREOF, ALL OF WHICH ARE
MADE A PART HEREOF
K&L PARTNERSHIP 58-2475728
----------------------------------------------
Debtor's Name
By:
-------------------------------------------
C. FRANK MOORE
Title:TRUSTEE
----------------------------------------
By:
-------------------------------------------
C. FRANK MOORE
Title:
----------------------------------------
<PAGE> 12
ADDITIONAL PROVISIONS
3. RIGHTS OF SECURED PARTY. Debtor agrees that Secured party may at any time,
whether before or after the occurrence of an Event of Default and without
notice or demand of any kind, (i) notify the obligor on or Issuer of any
Collateral to make payment to Secured Party of any amounts due or
distributable thereon, (ii) In Debtor's name or Secured Party's name
enforce collection of any Collateral by suit or otherwise, or surrender,
release or exchange all or any part of it, of compromise, extend or renew
for any period any obligation evidenced by the Collateral, (iii) receive
all proceeds of the Collateral, and (iv) hold any increase or profits
received from the Collateral as additional security for the Obligations,
except that any money received from the Collateral shall, at Scoured
Party's option, be applied in reduction of the Obligations, in such order
of application as Secured Party may determine, or be remitted to Debtor.
4. EVENTS OF DEFAULT. Each of the following occurrences shall constitute an
event of default under this Agreement (heroin called "Event c Default");
(i) Debtor shall fall to pay any or all of the Obligations when due or (if
payable on demand) on demand, or shall fail to observe or perform any
covenant or agreement heroin binding on it; (ii) any representation or
warranty by Debtor set forth in this Agreement or made to Secured Part in
any financial statements or reports submitted to Secured Party by or on
behalf of Debtor shall prove materially false or misleading; (iii)
garnishment summons or a writ of attachment shall be issued against or
served upon the Secured Party for the attachment of any property of the
Debtor or any indebtedness owing to Debtor; (iv) Debtor or any guarantor
of any Obligation shall (A) be or become insolvent (however defined); (B)
voluntarily file, or have filed against it involuntarily, a petition under
the United States Bankruptcy Code, or (C) if a corporation, partnership
organization, be dissolved or liquidated or, if a partnership, suffer the
death of a partner or, if an individual, die; or (D) go out of business;
(v) Secured Party shall in good faith believe that the value then
realizable by collection or disposition of the Collateral, after deduction
of expenses of collection and disposition, is less than the aggregate
unpaid balance of all Obligations then outstanding; (vi) Secured Party
shall in good faith believe that the prospect of due and punctual payment
of any or all of the Obligations is impaired.
5. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default
and at any time thereafter, Secured Party may exercise any one more of the
following rights or remedies: (i) declare all unmatured Obligations to be
immediately due and payable, and the same shall thereupon immediately due
and payable, without presentment or other notice or demand; (ii) exercise
all voting and other rights as a holder of the Collator; (iii) exercise
and enforce any or all rights and remedies available upon default to a
secured party under the Uniform Commercial Code, including the right to
offer and sell the Collateral privately to purchasers who will agree to
take the Collateral for investment and not with a view to distribution and
who will agree to the
<PAGE> 13
imposition of restrictive legends on the certificates representing the
Collateral, and the right to arrange for a sale which would otherwise
qualify as exempt from registration under the Securities Act of 1933; and
if notice to Debtor of any intend disposition of the Collateral or any
other intended action is required by law in a particular instance, such
notice shall be deemed commercially reasonable if given at least 10
calendar days prior to the date of intended disposition or other actin;
(iv) exercise or enforce and or all other rights or remedies available to
Secured Party by law or agreement against the Collateral, against Debtor
or against any other person or property. Upon the occurrence of the Event
of Default described in section 4(iv)(B), all Obligations shall be
immediately due and payable without demand or notice thereof.
6. MISCELLANEOUS. Any disposition of the Collateral in the manner provided in
Section 5 shall be deemed commercially reasonable. This Agreement can be
waived, modified, amended, terminated or discharged, and the Security
Interest can be released only explicitly in a writing signed by Secured
Party. A waiver signed b Secured Party shall be effective only in the
specific instance and for the specific purpose given. Mere delay or
failure to act shall not preclude the exercise or enforcement of any of
Secured Party's rights or remedies. All rights and remedies of Secured
Party shall be cumulative and may be exercised singularly or concurrently,
at Secured Party's option, and the exercise or enforcement of anyone such
right or remedy shall neither be a condition to nor bar the exercise or
enforcement of any other. All notices to be given to Debtor shall be
deemed sufficiently given if delivered or mailed by registered or
certified mail, postage prepaid to Debtor at its address set forth above
or at the most recent address shown on Secured Party's records. Secured
Party's duty of care with respect to Collateral in its possession (as
imposed by law) shall be deemed fulfilled if Secured Party exercises
reasonable care in physically _____ such Collateral or, in the case of
Collateral in the custody or possession of a bailee or other third person,
exercises reasonable care in the selection of the bailee or other third
person, and Secured Party need not otherwise preserve, protect, insure or
care for any Collateral. Secured Party shall not be obligated to preserve
any rights Debtor may have against prior parties, to exercise at all or in
any particular manner any voting rights which may be available with
respect to any Collateral, to realize on the Collateral at all or in any
particular manner or order, or to apply any cash proceeds of Collateral in
any particular order of application. Debtor will reimburse Secured Party
to all expenses (including reasonable attorney's fees and legal expenses)
incurred by Secured Party in the protection, defense or enforcement of the
Security interest, including expenses incurred in any litigation or
bankruptcy or insolvency proceedings. This Agreement shall be binding upon
and inure to the benefit of Debtor and Secured Party and their respective
heirs, representatives, successors and assigns and shall take effect when
signed by Debtor and delivered to Secured Party, and Debtor waives notice
of Secured Party's acceptance hereof. This Agreement shall be governed by
laws of the state in which it is executed and, unless the context
otherwise requires, all terms used herein which are defined in Articles 1
and 9 of the Uniform Commercial Code, as in effect in said state, shall
have the meanings therein stated. If any provision or application of this
Agreement is held unlawful or
<PAGE> 14
unenforceable in any respect, such illegality or unenforceability shall
not effect other provisions or applications which can be given effect, and
this Agreement shall be construed as if the unlawful or unenforceable
provision or application had never been contained herein or prescribed
hereby. All representations and warranties contained in this Agreement
shall survive the execution, delivery and performance of this Agreement
and the creation and payment of the Obligations. If this Agreement is
signed by more than one person as Debtor, the term "Debtor" shall refer to
each of them separately and to both or all of them jointly, all such
persons shall be bound both severally and jointly with the other(s); and
the Obligations shall include all debts, liabilities and obligations owed
to Secured Party by a Debtor solely or by both or several or all Debtors
jointly or jointly and severally, and all property described in Section 1
shall be included as part of the Collateral, whether it is owned jointly
by both or all Debtors or is owned in whole or in part by one (or more) of
them.
<PAGE> 15
BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM STATEMENT OF PURPOSE FOR AN
EXTENSION OF CREDIT SECURED BY MARGIN STOCK
(FEDERAL RESERVE FORM U-1)
GEORGIA STATE BANK , 620 FONTAINE ROAD S.W. P.O. BOX 278, MABLETON, GA 30126
Name of Bank
This report is required by law (15 U.S.C. ss.ss. 78g and 78w 12 CFR 221).
Public reporting burden for this collection of information is estimated to
average 4.2 minutes (0.07 hours) per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection of information. Send
comments regarding this burden estimate, including suggestions for reducing
this burden, to Secretary, Board of Governors of the Federal Reserve System,
20th and C Streets, N.W., Washington, D.C. 20551; and to the Office of
Management and Budget, Paperwork Reduction Project (7100-0115), Washington,
D.C. 20503.
INSTRUCTIONS
1. This form must be completed when a bank extends credit in excess of $100,000
secured directly or indirectly, in whole or in part, by any margin stock.
2. The term "margin stock" is defined in Regulation U (12 CFR 221) and
includes, principally: (1) stocks that are registered on a national securities
exchange or that are on the Federal Reserve Board's List of Marginable OTC
Stocks; (2) debt securities (bonds) that are convertible into margin stocks;
(3) any over-the-counter security designated as qualified for trading in the
National Market System under a designation plan approved by the Securities and
Exchange Commission (NMS security); and (4) shares of most mutual funds, unless
95 percent of the assets of the fund are continuously invested in U.S.
government, agency, state, or municipal obligations.
3. Please print or type (if space is inadequate, attach separate sheet).
PART I To be completed by borrower(s)
1. What is the amount of the credit being extended? $250,125.00
2. Will any part of this credit be used to purchase or carry margin stock?
[ ] Yes |X| No
<PAGE> 16
If the answer is "no," describe the specific purpose of the credit._______
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
I (We) have read this form and certify that to the best of my (our) knowledge
and belief the information given is true, accurate, and complete, and that the
margin stock and any other securities collateralizing this credit are
authentic, genuine, unaltered, and not stolen, forged, or counterfeit.
K& L PARTNERSHIP 58-2475728
<TABLE>
<S> <C>
Signed: Signed:
BY: BY:
- ------------------------------------------------ --------------------------------------------
Borrower's signature Date Borrower's signature Date
C. FRANK MOORE, TRUSTEE C. FRANK MOORE
- ------------------------------------------------ --------------------------------------------
Print or type name Print or type name
</TABLE>
This form should not be signed if blank.
A BORROWER WHO FALSELY CERTIFIES THE PURPOSE OF A CREDIT ON THIS FORM
OR OTHERWISE WILLFULLY OR INTENTIONALLY EVADES THE PROVISIONS OF
REGULATION U WILL ALSO VIOLATE FEDERAL RESERVE REGULATION X,
"BORROWERS OF SECURITIES CREDIT."
PART II To be completed by blank only if the purpose of the credit is to
purchase or carry margin securities (Part I(2) answered "yes").
1. List the margin stock securing this credit; do not include debt securities
convertible into margin stock. The maximum loan value of margin stock is
50 percent of its current market value under the current Supplement to
Regulation U.
<TABLE>
<CAPTION>
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
Date and Source
No. of Market Price of Valuation Total Market
Shares Issue Per Share (See note below) Value Per Issue
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
<S> <C> <C> <C> <C>
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
</TABLE>
<PAGE> 17
2. List the debt securities convertible into margin stock securing this
credit. The maximum loan value of such debt securities is 50 percent of
the current market value under the current Supplement to Regulation U.
<TABLE>
<CAPTION>
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
Date and Source
Principal Market Price of Valuation Total Market
Amount Issue (See note below) Value Per Issue
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
<S> <C> <C> <C> <C>
- ----------- ------------------------------------------------ --------------- ------------------- -------------------
</TABLE>
3. List other collateral including non-margin stock securing this credit.
<TABLE>
<CAPTION>
- ------------------------------------------------------------ --------------- ------------------- -------------------
Date and Source
Describe Briefly Market Price of Valuation Good Faith Loan
(See note below) Value
- ------------------------------------------------------------ --------------- ------------------- -------------------
<S> <C> <C> <C>
- ------------------------------------------------------------ --------------- ------------------- -------------------
</TABLE>
Note: Bank need not complete "Date and source of valuation" if the market value
was obtained from regularly published information in a journal of general
circulation or an automated quotation system.
PART III To be signed by a bank officer in all instances.
I am a duly authorized representative of the bank and understand that this
credit secured by margin stock may be subject to the credit restrictions of
Regulation U. I have read this form an any attachments, and I have accepted the
customer's statement in Part I in good faith as required by Regulation U*; and
I certify that to the best of my knowledge and belief, all the information
given is true, accurate, and complete. I also certify that if any securities
that directly secure the credit are not or will not be registered in the name
of the borrower or its nominee, I have or will cause to have examined the
written consent of the registered owner to pledge such securities. I further
certify that any securities that have been or will be physically delivered to
the bank in connection with this credit have been or will be examined; that all
validation procedures required by bank policy and the Securities Exchange Act
of 1934 (section 17(f), as amended) have been or will be performed; and that I
am satisfied to the best of my knowledge and belief that such securities are
genuine and not stolen or forged and their faces have not been altered.
<PAGE> 18
<TABLE>
<CAPTION>
Signed:
<S> <C>
- ----------------------------------------- --------------------------------------------------
Date Bank officer's signature
VICE PRESIDENT JACKIE GOLDEN
- ----------------------------------------- --------------------------------------------------
Title Print or type name
</TABLE>
- ----------------------------------
* To accept the customer's statement in good faith, the officer of the bank
must be alert to the circumstances surrounding the credit and, if in possession
of any information that would cause a prudent person not to accept the
statement without inquiry, must have investigated and be satisfied that the
statement is truthful. Among the facts which would require such investigation
are receipt of the statement through the mail or from a third party.
THIS FORM MUST BE RETAINED BY THE LENDER FOR THREE YEARS
AFTER THE CREDIT IS EXTINGUISHED.
<PAGE> 19
Borrower's Name and Address
----------------------------------------------------
- -------------------------------------------------------------------------------
Lender's Name and Address
----------------------------------------------------
- -------------------------------------------------------------------------------
Loan Description (Loan)
Number
--------------------------------------------
Amount $250,125.00
Date JUNE 29, 1999
YEAR 2000 ADDENDUM
As part of Borrower's loan from Lender, described above (Loan), Borrower agrees
to take all measures necessary to assure that Borrower's Information technology
`is in compliance with "Year 2000 requirements" and makes the following
representations and warranties as set forth in this Addendum. "Year 2000
requirements" include analyzing, programming, and testing all information
technology to accurately process date and time data, including, but not limited
to, calculating, comparing, and sequencing functions. Year 2000 requirements
apply to all processes that directly or indirectly affect Borrower's business,
such as accounting and processing procedures, as well as basic electronic
devices that are necessary to facility management, such as security systems,
elevators, and telephones.
Borrower represents that Borrower has a Year 2000 business plan (Plan) In place
to satisfy Year 2000 requirements. Borrower's Plan has been approved by
Borrower's management and includes an allocation o resources necessary to
complete the Plan as designed. Borrower agrees to allow Lender access to
Borrower's Plan and, if requested by Lender, Borrower will provide access to
Borrower's information technology systems to Lender or a third party for
purposes of determining Borrower's progress made under the Plan, Borrower
agrees that non-compliance with Borrower's Plan shall be deemed non-compliance
with the Terms of Borrower's Loan.
With respect to Borrower's Plan, Borrower warrants as follows: (1) the Plan
includes a thorough Year 2001 assessment of all information technology systems
used by Borrower; (2) the Plan includes processes to address and prepare for
the Interaction of Borrower's Information technology systems with all external
information technology systems that is customary or foreseeable in the course
of operating Borrower's business; (3) the Plan provides for periodic
evaluations of Borrower's progress under the Plan; (4) the Plan
<PAGE> 20
includes an allocation of resources to assure that the Plan is completed in a
timely manner, as specified in the Plan and agreeable to Lender and (5) the Plan
includes contingency arrangements for non-compliance with the Plan or the
failure of Borrower's vendors, partners, customers, or other related entities to
adequately address Year 2000 requirements.
To Lender's satisfaction, Borrower will keep Lender advised as to the progress
and timeliness of Borrower's efforts to fulfill Year 2000 requirements,
Borrower agrees that Lender has no responsibility for managing, advising, or
executing any of Borrower's efforts to comply with Year 2000 requirements.
By signing below, Borrower acknowledges receipt of a copy of this Addendum and
agrees to its terms as part of Borrower's Loan.
Dated JUNE 29, 1999
For Borrower For Lender
By X By X
----------------------------- ---------------------------------
KEN F. THIGPEN, PRESIDENT
C. FRANK MOORE, TRUSTEE
-----------------------------
Print Name and Title
By X C. FRANK MOORE
-----------------------------
Print Name and Title
<PAGE> 21
YEAR 2000 DISCLOSURE & ACKNOWLEDGMENT
This disclosure and acknowledgment is part of our effort to help our customers
handle Year 2000 issues. As you may already know, Year 2000 Issues arise due to
the fact that many computer programs use only the last two digits to represent
a year. It is believed that when we enter the year 2000, computers may
interpret "00" as "1900" instead of "2000." As a result, many computers may
produce errors or cease to function altogether.
It is important to address how Year 2000 issues may affect you so that you may
prepare for problems they may present. Year 2000 issues arise when information
is produced based on a time or a date, which includes calculations as well as
basic electronic devices used to manage your facility, such as security
systems, elevators, and telephones. In addition, businesses must also prepare
for the potential effect of vendors, partners, and customers who do not take
appropriate precautions to assure that their systems are Year 2000 ready.
At this point, you should have a Year 2000 program in place that includes a
comprehensive business plan to handle all Year 2000 issues. This program should
assess your current information technology Year 2000 status, address all Year
2000 issues that may affect your business, allocate the necessary resources
toward completing the program and provide systematic and complete evaluations
of progress made on the program. In addition, your Year 2000 program should
identify contingency plans for information technology systems that are not Year
2000 ready. You should be prepared to present your Year 2000 program and report
your progress if requested.
By signing below, you acknowledge receipt of this disclosure and agree to give
any and all necessary attention to Year 2000 issues to insure that your
information technology is in compliance with the Year 2000.
K&L PARTNERSHIP 58-2475728 GEORGIA STATE BANK
- ---------------------------- 620 GONTAINE ROAD S.W. PO BOX 278
Name
By X JUNE 29, 1999
------------------------------------------- -----------------
Signature and Title C. FRANK MOORE, TRUSTEE Date
By X JUNE 29, 1999
------------------------------------------- -----------------
Signature and Title C. FRANK MOORE Date
<PAGE> 1
EXHIBIT 99.8
COMMERCIAL FIXED RATE PROMISSORY NOTE
LENDER:
SunTrust Bank, Northeast Georgia NA
P. O. Box 1418 MC 330
Gainesville, GA 30503
(770) 535-9600
BORROWER:
K&L Partnership
366 Powder Springs Street
Marietta, GA 30064
Identification No.: 582475728
OFFICER IDENTIFICATION: 58246
INTEREST RATE: 8.000%
PRINCIPAL AMOUNT: $187,600.00
FUNDING DATE: 7/19/99
MATURITY DATE: 8/19/99
CUSTOMER NUMBER:
LOAN NUMBER:
PURPOSE: Investment
PROMISE TO PAY: For value received, Borrower promises to pay to the order of
Lender the principal amount of One Hundred Eighty Seven Thousand Six Hundred and
no/100 Dollars ($187,600.00) plus interest on the unpaid principal balance at
the rate and in the manner described below, until all amounts owing under this
Note are paid in full. All amounts received by Lender shall be applied first to
late charges and expenses, accrued unpaid interest, then to unpaid principal, or
in any other order as determined by Lender, in Lender's sole discretion, as
permitted by law.
INTEREST RATE: Interest shall be computed on the basis of the actual number of
days over 360 days per year. Interest on this Note shall be calculated and
payable at the fixed rate of 8.00% per annum.
DEFAULT RATE: If there is an Event of Default under this Note, the Lender may,
in its discretion, increase the interest rate on this Note to: 4% per annum
above interest rate accruing at maturity or at acceleration or the maximum
interest rate Lender is permitted to charge by law, whichever is less.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule: A single payment of the unpaid principal balance plus
accrued interest is due and payable on August 19, 1999.
<PAGE> 2
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, any partial
prepayment will not affect the due date or the amount of any subsequent
installment, unless agreed to, in writing, by Borrower and Lender. If this Note
is prepaid in full, there will be: [x] No minimum finance charge or prepayment
penalty. [ ] A minimum finance charge of $__________. [ ] A prepayment penalty
of:
LATE CHARGE: If a payment is received more than 15 days late, Borrower will be
charged a late charge of: [ ] ______________ % of the unpaid portion of the
payment; [x] $50.00 or 5.00% of the unpaid portion of the payment, whichever is
[ ] greater [x] less.
COLLATERAL: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in all of Borrower's
right, title, and interest in all monies, instruments, savings, checking and
other accounts of Borrower (excluding IRA, Keogh and other accounts subject to
tax penalties if so assigned) that are now or in the future in Lender's custody
or control. [ ] If checked, the obligations under this Note are also secured by
the collateral described in any security instruments executed in connection with
this Note, and any collateral described in any other security instruments
securing this Note or all of Borrower's obligations to Lender.
RENEWAL: [ ] If checked, this Note is a renewal, but not a satisfaction, of Loan
Number ____________.
THE PERSONS SIGNING BELOW ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTAND, AND AGREE
TO THE PROVISIONS OF THIS NOTE, INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE, AND FURTHER ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS NOTE.
Dated: July 19, 1999
Borrower: K & L Partnership
By: //s//
------------------------------
C. Frank Moore
Trustee, H J R Trust
<PAGE> 3
TERMS AND CONDITIONS
1. EVENT OF DEFAULT. An Event of Default shall occur under this Note in
the event that Borrower, any guarantor or any other third party
pledging collateral to secure this Note:
(a) fails to make any payment on this Note or any other
indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or
covenant to Lender contained in this Note, any security
instrument, or any other present or future written agreement
regarding this or any other indebtedness of Borrower to
Lender;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) sells, conveys, or transfers rights in any collateral securing
this Note without the written approval of Lender, or destroys,
loses or damages such collateral in any material respect or
subjects such collateral to seizure, confiscation or
condemnation;
(e) has a garnishment, judgment, tax levy, attachment or lien
entered or served against Borrower, any guarantor, any third
party pledging collateral to secure this Note or any of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, fails to pay debts as
they become due, or becomes the subject of any bankruptcy,
insolvency or debtor rehabilitation proceeding;
(g) fails to provide Lender evidence of satisfactory financial
condition;
(h) has a majority of its outstanding voting securities sold,
conveyed, or transferred to any person or entity other than
any person or entity that has the majority ownership as of the
date of the execution of this agreement; or
(i) if Lender deems itself insecure in good faith with respect to
any of the obligations or indebtedness.
2. RIGHTS OF LENDER ON EVENT OF DEFAULT. If there is an Event of Default
under this Note, Lender will be entitled to exercise one or more of the
following remedies without notice or demand (except as required by
law):
(a) to declare the principal amount plus accrued interest under
this Note and all other present and future obligations of
Borrower immediately due and payable in full; such
acceleration shall be automatic and immediate if the Event of
Default is a filing under the Bankruptcy Code;
(b) to collect the outstanding obligations of Borrower with or
without resorting to judicial process;
(c) to cease making advances under this Note or any other
agreement between Borrower and Lender;
(d) to take possession of any collateral in any manner permitted
by law;
(e) to require Borrower to deliver and make available to Lender
any collateral at a place reasonably convenient to Borrower
and Lender;
<PAGE> 4
(f) to sell, lease or otherwise dispose of any collateral and
collect any deficiency balance with or without resorting to
legal process;
(g) to set-off Borrower's obligations against any amounts due to
Borrower including, but not limited to, monies, instruments,
and deposit accounts maintained with Lender; and
(h) to exercise all other rights available to lender under any
other written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Lender's remedies under this paragraph are in addition to those
available under any other written agreement or applicable law.
3. DEMAND FEATURE: [ ] If checked, this Note contains a demand feature.
Lender's right to demand payment, at any time, and from time to time,
shall be in Lender's sole and absolute discretion, whether or not any
default has occurred.
4. FINANCIAL INFORMATION. Borrower will at all times keep proper books of
record and account in which full, true and correct entries shall be
made in accordance with generally accepted accounting principles and
will deliver to Lender, within ninety (90) days after the end of each
fiscal year of Borrower, a copy of the annual financial statements of
Borrower relating to such fiscal year, such statements to include (i)
the balance sheet of Borrower as at the end of such fiscal year and
(ii) the related income statement, statement of retained earnings and
statement of changes in the financial position of Borrower for such
fiscal year, prepared by such certified public accountants as may be
reasonably satisfactory to Lender. Borrower also agrees to deliver to
Lender within fifteen (15) days after filing same, a copy of Borrower's
income tax returns and also, from time to time, such other financial
documentation with respect to Borrower as Lender may request.
5. MODIFICATION AND WAIVER. The modification or waiver of any of
Borrower's obligations or Lender's rights under this Note must be
contained in a writing signed by Lender. Lender may perform any of
Borrower's obligations or delay or fail to exercise any of its rights
without causing a waiver of those obligations or rights. A waiver on
one occasion will not constitute a waiver on any other occasion.
Borrower's obligations under this Note shall not be affected if Lender
amends, compromises, exchanges, fails to exercise, impairs or releases
any of the obligations belonging to any Borrower or guarantor or any of
its rights against any Borrower, guarantor, or any collateral securing
any of Borrower's obligations.
6. SEVERABILITY. If any provision of this Note violates the law or is
unenforceable, the rest of this Note shall remain valid.
Notwithstanding anything contained in this Note to the contrary, in no
event shall interest accrue under this Note, before or after maturity,
at a rate in excess of the highest rate permitted by applicable law,
and if interest (including any charge or fee held to be interest by a
court of competent jurisdiction) in excess thereof be paid, any excess
shall constitute a payment of, and
<PAGE> 5
be applied to, the principal balance hereof, and if the principal
balance has been full paid, then such excess interest shall be repaid
to Borrower.
7. ASSIGNMENT. Borrower agrees not to assign any of Borrower's rights,
remedies or obligations described in this Note without the prior
written consent of Lender, which consent may be withheld by Lender in
its sole discretion. Borrower agrees that Lender is entitled to assign
some or all of its rights and remedies described in this Note without
notice to or the prior consent of Borrower.
8. NOTICE. Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and mailed to the parties at
the addresses described in this Note or such other address as the
parties may designate in writing from time to time.
9. APPLICABLE LAW. This Note shall be governed by the laws of the state
indicated in Lender's address. Unless applicable law provides
otherwise, Borrower consents to the jurisdiction and venue of any court
located in such state selected by Lender, in its discretion, in the
event of any legal proceeding under this Note.
10. COLLECTION COSTS AND ATTORNEYS' FEES. To the extent permitted by law,
Borrower agrees to pay all costs of collection, including attorneys'
fees of 15 percent of the principal and interest owing on the
indebtedness if the indebtedness is collected by law or through an
attorney at law.
11. MISCELLANEOUS. This Note is being executed primarily for commercial,
agricultural, or business purposes. Borrower will provide Lender with
current financial statements and other financial information upon
request. Borrower and Lender agree that time is of the essence.
Borrower agrees to make all payments to Lender at any address
designated by lender and in lawful United States currency. Borrower and
any person who endorses this Note waives presentment, demand for
payment, notice of dishonor and protest and further waives any right to
require Lender to proceed against anyone else before proceeding against
Borrower or said person. All references to Borrower in this Note shall
include all of the parties singing this Note, and this Note shall be
binding upon the heirs, personal representatives, successors and
assigns of Borrower and Lender. If there is more than one Borrower
their obligations under this Note shall be joint and several. This Note
represents the complete and integrated understanding between Borrower
and Lender regarding the terms hereof.
12. JURY TRIAL WAIVER. LENDER AND BORROWER HEREBY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS
NOTE OR THE COLLATERAL SECURING THIS NOTE.
13. ADDITIONAL TERMS:
<PAGE> 6
PARTNERSHIP CERTIFICATE OF AUTHORITY (Borrowing)
LENDER:
SunTrust Bank, Northeast Georgia NA
P. O. Box 1418 MC 330
Gainesville, GA 30503
(770) 535-9600
We, the undersigned, hereby certify as follows: (1) that we are all the general
partners of K & L Partnership (the "Partnership") (or are authorized to act on
behalf of them) pursuant to that certain Partnership Agreement dated July 19,
1999 as the same may be amended from time to time, which Partnership has its
principal place of business at 366 Powder Springs Street Marietta, GA 30064 (2)
that we are jointly and severally liable (with each other and with the
Partnership) for all indebtedness and obligations incurred in the name of the
Partnership, whether such indebtedness and obligations are evidenced by a note
or otherwise; and (3) that we are executing this Partnership Certificate of
Authority (this "Authority") to provide authority to SunTrust Bank, Northeast
Georgia NA (the "Bank") to enter into certain agreements with the Partnership in
the manner set forth herein:
1. On behalf of the Partnership we hereby authorize any 1 (number
required) of the following individuals to borrow money, obtain credit and
procure loans from Bank without limit as to the amount; to sell or discount any
notes, bills or accounts, acceptances or any other instrument to Bank; to apply
for and receive letters of credit from Bank, and from time to time to increase
the amount extend the date of expiration, or amend the terms of any outstanding
letters of credit; to assign, pledge, convey, transfer, mortgage or otherwise
create a lien upon any real and/or personal property of this Partnership as
security for the payment of any and all such obligations, loans or credits (and
renewals, extensions or modifications of the same), and/or for the payment and
performance of any and all other indebtedness, liabilities and obligations of
this Partnership to aid Bank, whether in the usual course of business or
otherwise; to enter into any other agreement with Bank in regard to commercial
banking transactions; and in furtherance of and in connection with the
foregoing, to make, execute and deliver in the name of and on behalf of this
Partnership, such agreements, documents or instruments deemed reasonable or
necessary. All actions heretofore taken by the individual or individuals named
herein in obtaining letters of credit, loans or credits on behalf of this
Partnership and in the exercise of the authority and powers herein granted are
hereby ratified, adopted and confirmed, and Bank is hereby authorized and
directed to pay proceeds of any such loans as directed by said individual(s),
whether for payment or credit to the account of this Partnership with Bank or
with another financial institution, or to such individuals or any third person,
or otherwise.
Name: C. Frank Moore Title: Trustee, H J R Trust
2. We expressly understand and agree that the Bank, when dealing with
any of those persons herein authorized to act for the Partnership, shall be
entitled to accept the
<PAGE> 7
representations of such authorized person or persons that the purpose of
exercising the authority herein given is within the scope of the business of the
Partnership, and said Bank shall be under no obligation to make any inquiries in
order to verify or confirm any of said representations nor to see the
application of Partnership funds for the purpose so represented; and, further,
the Bank shall in no way be responsible for misapplication of Partnership funds
or other property acquired, encumbered or disposed of by virtue of the authority
herein given. To induce Bank to rely hereon, the undersigned agree individually
and on behalf of the Partnership that notwithstanding any dissolution of the
Partnership or modification or termination of the authority of any partner,
whether by expiration of the Partnership Agreement, mutual consent, death,
resignation, retirement, accession of one or more new partners, or otherwise,
this Authority shall continue to be binding on each of the undersigned and his
heirs and legal representatives and upon the Partnership and its successors and
all new partners thereof, until Bank has received written notice signed by one
of the undersigned or his legal representatives revoking this Authority.
Witness the hands and seals of the undersigned individuals on this ___
day of ________, _________.
Name: C. Frank Moore Title: Trustee, H J R Trust Signature: ____________
<PAGE> 1
EXHIBIT 99.9
CONFIRMING STATEMENT
This Statement confirms that the undersigned, Caroline Weiss Kyriopoulos, has
authorized and designated Arthur G. Weiss ("Designee") to execute and file on
the undersigned's behalf all Forms 3, 4 and 5 and Schedules 13G or Schedules
13D (including any amendments thereto) that the undersigned may be required
to file with the U.S. Securities and Exchange Commission as a result of the
undersigned's ownership of or transactions in securities of Proactive
Technologies, Inc. The authority of my Designee under this Statement shall
continue until the undersigned is no longer required to file Forms 3, 4, and 5
or Schedules 13G or Schedules 13D with regard to the undersigned's ownership of
or transactions in Securities of Proactive Technologies, Inc., unless earlier
revoked in writing. The undersigned acknowledges that my Designee is not
assuming any of the undersigned's responsibilities to comply with Section 13 or
Section 16 of the Securities Exchange Act of 1934. My Designee shall not be
liable to me or any of my successors in interest for any action taken or not
taken in good faith, but shall be liable solely for willful misconduct or gross
negligence on the part of my Designee.
--------------------------------
Caroline Weiss Kyriopoulos
<PAGE> 1
EXHIBIT 99.10
CONFIRMING STATEMENT
This Statement confirms that the undersigned, Charles G. Weiss, has authorized
and designated Arthur G. Weiss ("Designee") to execute and file on the
undersigned's behalf all Forms 3, 4, and 5 and Schedules 13G or Schedules 13D
(including any amendments thereto) that the undersigned may be required to file
with the U.S. Securities and Exchange Commission as a result of the
undersigned's ownership of or transactions in securities of Proactive
Technologies, Inc. The authority of my Designee under this Statement shall
continue until the undersigned is no longer required to file Forms 3, 4, and 5
or Schedules 13G or Schedules 13D with regard to the undersigned's ownership of
or transactions in Securities of Proactive Technologies, Inc., unless earlier
revoked in writing. The undersigned acknowledges that my Designee is not
assuming any of the undersigned's responsibilities to comply with Section 13 or
Section 16 of the Securities Exchange Act of 1934. My Designee shall not be
liable to me or any of my successors in interest for any action taken or not
taken in good faith, but shall be liable solely for willful misconduct or gross
negligence on the part of my Designee.
----------------------------------------
Charles G. Weiss
<PAGE> 1
EXHIBIT 99.11
The undersigned each hereby certifies and agrees that the above
Schedule 13D/A concerning securities issued flightserve.com is being filed on
behalf of each of the undersigned.
/s/Arthur B. Weiss July 22, 1999
Arthur G. Weiss Date
/s/Arthur G. Weiss, Attorney in Fact July 22, 1999
Caroline Weiss Kyriopoulos Date
/s/Arthur G. Weiss, Attorney in Fact July 22, 1999
Charles G. Weiss Date
