STOCK EXCHANGE AGREEMENT
Keystone Laboratories, Inc.
This Stock Exchange Agreement (Agreement) is entered into this 29th day of
June, 1996, by and among PROACTIVE TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as PTEK), and XXXXX CAPITAL CORPORATION, an Oklahoma
Corporation, (hereinafter collectively referred to as Xxxxx).
WHEREAS, PTEK is the owner of record of one hundred per cent (100%) of the
issued and outstanding shares of the Voting Common Stock (the Shares) of
Keystone Laboratories, Inc. (the Company) and PTEK's desire to exchange all of
their issued and outstanding shares of the Company for voting stock of PTEK,
and PTEK wishes to acquire the Clarks' outstanding shares of PTEK as follows:
428,571 shares @ $3.50 per share
WHEREAS, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I.
EXCHANGE OF THE SHARES
1.1 Exchange. Subject to the terms and conditions hereof, at the Closing (as
defined below), Xxxxx agrees to assign, transfer, convey and deliver to PTEK,
and PTEK agrees to acquire from Xxxxx, 428,571 shares of PTEK voting common
stock in exchange for all 3,000 shares of voting common stock of Keystone
Laboratories, Inc. (the Exchange Shares).
1.2 Closing. The exchange shall be consummated at the Closing to take place
at the office of the PTEK on or before June 30, 1996, unless otherwise
mutually agreed upon by the parties.
1.3 Exchange Shares. The individual disbursement of Exchange Shares
shall be issued as follows:
Xxxxx Capital Corp % shares
Xxxxxxx X. Xxxxx, Xx. % shares
Xxxx X. Xxxx % shares
G. Xxxxx Xxxxxx % shares
% shares
% shares
TOTAL 100% 3,000
The PTEK Shares shall be registered and freely tradable at closing.
1.4 Other Agreements. Xxxxx, and its assigns and agents as set forth
in Paragraph 1.3 above, agree to assign all of the shares of stock it is
receiving of Keystone Laboratories, Inc. To PTEK until full payment of the
Purchase Pirce is made under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of PTEK. PTEK represents and
warrants to Xxxxx as follows:
A.) Organization. The Company is a corporation, duly incorporated,
validly existing in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
B.) Authorized Capitalization. The authorized capitalization of the
Company consists of Three Thousand (3,000) Shares of $0.00 par value Common
Stock, of which ( ) shares have been issued and are outstanding.
The Shares have been duly authorized, validly issued, are fully paid are non
assessable and have no liability attaching to the ownership thereof. To the
best of PTEK's knowledge, the Company does not have any outstanding rights,
call, options, which obligate it to issue any of its shares of Capital Stock,
whether authorized or not. To the best of PTEK's knowledge, the Company is
not bound by any agreement, contract, arrangement or understanding, whether
oral or written, giving any person or entity the right to participate, share
in, or in any way, obligating the Company to distribute any portion of its
income, profits or assets.
C. Company's Financial Statements. To the knowledge of the PTEK, the
Company's statements, dated June 30, 1996, are complete, were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods and fairly present the financial position of the
Company as of June 30, 1996. Except as disclosed in the financial statements,
and special knowledge which may be known to Xxxxx, or any of its principal or
agents, PTEK is not aware of any material liabilities for which the Company is
liable or will become liable in the future, other than liabilities arising in
the ordinary course.
D. Taxes. To the knowledge of PTEK, the Company has filed all taxes,
state, federal, and local, as well as any other reports and returns which were
required to be filed and there exists a substantial basis in law or fact for
any positions taken in such reports. To the best of the knowledge of PTEK,
there are no back taxes, penalties or interest due at this time. Xxxxx agrees
to assume any back taxes which may exist.
E. Books and Records. To the knowledge of PTEK, the Company's books
and records are complete and correct and have been maintained according to
good business practices and accurately reflect in all material respects
reflects the business, financial condition and results of the operation of the
Company as set forth in the Company's Financial statements.
F. Insurance. To the knowledge of PTEK, the Company has the
following insurance associated with its policies of general liability, fire
and extended coverage, worker's compensation, products liability, property and
indemnity and performance bonds and has delivered copies of same to Xxxxx
prior to execution upon request by Xxxxx, and is not in default with any
provisions thereof, and said insurance is sufficient for compliance by Company
with all requirements of law and all agreements affecting Company. These
coverages will remain in full force and effect through Closing of this
transaction and will not be affected by, terminate or lapse by reason of the
transactions contemplated in this Agreement.
G. Material Agreements. To the knowledge of PTEK, all material
agreements, employment agreements, contracts or other material arrangement
with any officer, director or shareholder of the Company or any relative of
such person, or any agreements which would have a material affect on the
business, financial condition, results of operation, assets, liabilities, or
prospects of the Company have been disclosed to Xxxxx prior to execution of
this Agreement.
H. Permits. To the knowledge of PTEK, all necessary permits, licenses,
approvals, or other authorizations that are materially necessary for the
conduct of its business will be shown to the Xxxxx prior to execution, all of
which are still in full force and effect and will continue to be owned by the
Company after Closing.
I. Compliance. To the knowledge of the PTEK, the Company is not in
violation of any federal, state or local law, ordinance or rule or regulation
applicable to its business, nor has it received any actual or threatened
complaint, notice or citation of violation from any governmental authority.
Further, to the knowledge of the PTEK, the Company is in compliance with all
applicable pollution control and environmental laws, rules and regulations in
all material respects, and has no environmental licenses, permits or
authorizations.
J. Litigation. To the knowledge of PTEK, there are no actions,
suits, claims, complaints, proceedings pending or threatened against the
Company or the Xxxxx, or either of them, at law or in equity, and there are
no facts which would provide a legitimate basis for any such action, suit or
proceeding, which if decided against the Company, would have a materially
adverse effect on the Company. Further, to the knowledge of the PTEK, there
are no outstanding orders, judgments or decrees of any person or governmental
authority which specifically affect the Company or any of its assets.
K. Validity of existing contracts. To the knowledge of PTEK, all
material contracts, agreements. Leases and licenses, which the Company is a
party or by which any of its properties or assets are bound or affected, are
valid and in full force and effect; and to the knowledge of PTEK, no breach or
default exists, or upon giving timely notice, would exist on the part of the
Company or of any other party.
L. No material changes. Since June 30, 1996, there have been no actual
or threatened developments of a nature that is materially adverse or
materially adversely affects the business, financial condition of the
business, its assets, liabilities or prospects.
M. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of PTEK's conduct.
N. Full Disclosure. To the knowledge of the PTEK, all statements of
PTEK contained in this Agreement and other documentation delivered on behalf
of PTEK to PTEK are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein no
misleading in light of the circumstances under which they were made.There are
no facts known to the Xxxxx, which could have a materially adverse affect on
the business, financial condition, results of operation, assets, liabilities,
or prospects of the Company, which have not been disclosed to PTEK in this
Agreement or its exhibits, or which are not known by Xxxxx or any of its
principals or agents.
O. Title to the Shares. At Closing, PTEK shall own of record and
beneficially the number of shares listed in Paragraph 1.3 of the Company, free
and clear of all encumbrances, liens, pledges, claims, options, charges and
assessments of any nature whatsoever, with full right and authority to
transfer said shares to PTEK. No person has any preemptive rights or rights
of first refusal with respect to any of the shares. There exists no voting
agreement, voting trust, or outstanding proxy with respect to any of the
shares, nor are there any outstanding rights options, warrants, or calls with
respect to the Shares.
2.2 Representations of the Warranties of Xxxxx. Xxxxx represents and
warrants to Xxxxx as follows:
a. Organization. Xxxxx is a corporation, duly incorporated, validly
existing, and in good standing under the laws of the State of Oklahoma, and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business.
b. Authority. Xxxxx has full power and authority to execute and
deliver this Agreement and to consummate and perform the transactions
contemplated thereby. These agreements shall constitute legal and binding
obligations on Xxxxx, enforceab le in accordance with their xxxxx.Xx consent
or approval must be obtained from any other person or entity. Further, the
consummation and performance of the transactions contained herein do not
conflict with, require the approval of, result in a breach or default
hereunder, or give to another any interest or right of termination,
cancellation or acceleration, in or with respect to, any material agreement to
which Xxxxx is a party or by which Xxxxx or any of its material assets or
properties are affected.
c. Fees. All negotiations relating to this Transaction has been
conducted in such a manner so as not to give rise to any finder's fees,
broker's commissions, or advisory fees as a result of PTEK's conduct.
d. Full Disclosure. To the knowledge of Xxxxx, all statements of
Xxxxx c ontained in this Agreement and other documentation delivered on behalf
of Xxxxx to PTEK are true and correct in all material respects and do not omit
any material fact necessary to make the statements contained therein no
misleading in light of the circumstances under which they were made.There are
no facts known to Xxxxx, which could have a materially adverse affect on the
business, financial condition, results of operation, assets, liabilities, or
prospects of Xxxxx, which have not been disclosed to PTEK in this Agreement or
its exhibits, or which are not known by Xxxxx.
e. Title to the Shares. At Closing, Xxxxx shall transfer to PTEK of
record and beneficially the number of PTEK's Exchange Shares listed in
Paragraph 1.3, free and clear of all encumbrances, liens, pledges, claims,
options, charges and assessments of any nature whatsoever. No person has any
preemptive rights or rights of first refusal with respect to any of the
Exchange Shares. There exists no voting agreement, voting trust, or
outstanding proxy with respect to any of the Exchange Shares, nor are there
any outstanding rights options, warrants, or calls with respect to the
Exchange Shares.
ARTICLE III.
COVENANTS.
3.1 Covenants of PTEK. PTEK covenants and agrees that it will use its best
efforts, subject to its obligations to the Company, from the date hereof to
the closing without the prior written consent of Xxxxx to cause the following
to occur:
a. Ordinary Course of Business. The Company will operate its business
only in the ordinary course, and will use its best efforts to preserve the
Company's business, organization, goodwill and relationships with persons
having business dealings with the Company.
b. Maintain Equipment and Properties. The Company will maintain all of
its equipment and properties in good working order and repair, (reasonable
wear and tear excepted) and will take all necessary steps to maintain in full
force and effect its patents trademarks, trade names, goodwill and other
intangible assets.
c. Compensation and Indebtedness. The Company will not enter or alter
any employment agreement or increase any compensation to any officer or
employee or enter into any collective bargaining agreements. Also, the Company
will not make any loans or enter into any transaction, agreement, arrangement
or understanding of any material nature with any of its officers, directors,
or employees. Further, the Company will not create, incur, assume or otherwise
guarantee any obligation for borrowed money, indebtedness, lease, except in
the ordinary course of business consistent with past practices.
d. No Amendments. The Company will not amend its corporate charter,
articles or bylaws without prior consent of Xxxxx, and Company will maintain
its corporate existence, licenses, permits powers, and rights in full force
and effect.
e. No Disposition or Encumbrance. Except in the ordinary course of
business consistent with past practice, the Company will not dispose of any
asset of the Company, or satisfy any liability or obligation, except for
previously scheduled repayment of debt. Further, the Company will not cancel
or compromise any debt or encumbrance, grant any rights under concessions,
licenses, agreements, patents, inventions, technology or process with respect
to any know-how, or modify or terminate any existing license, lease or
contract.
f. Insurance. The Company will maintain in effect all current
insurance policies.
g. No dividends. The Company will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
h. No Breach and Due Compliance. The Company will not do any act or
omit to do any act which would cause a breach of any of its material
contracts. Further, the Company will comply with all laws, regulations and
rules applicable to it and to the conduct of its business. The Company will
also not amend, terminate, or waive any material right, whether or not in the
ordinary course of business, without prior written consent of Xxxxx.
I. Notice of Change. The Company will promptly advise Xxxxx in
writing of any material adverse change, or of the occurrence of an event which
involves any substantial possibility of a material adverse, in its business,
financial condition, results of operations, assets, liabilities, or prospects.
3.2 Covenants of Xxxxx. Xxxxx covenants and agrees that it will, from the
date hereof to the closing without the prior written consent of PTEK to cause
the following to occur:
a. Interest of Shares: Interest shall be calculated based on 1,500,000
@ 8.5% interest for the year, and shall be payable as set forth below together
with the base number of shares or in cash, per the promissory note.
b. Delivery of Shares. Deliver the common stock of PTEK as set forth
in Paragraph 1 (a) to be delivered as follows: 72,000 shares of PTEK stock by
July 31, 1996, and the balance to be delivered in four equal interest
installments of 7,589 shares to be delivered on the following dates: October
31, 1996, January 31, 1997, May 31, 1997, and July 31, 1997. The principal
payment of 356,571 shares is due July 31, 1997.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSE
The obligation of PTEK and Xxxxx to close the Transaction contemplated
hereunder is subject to fulfillment by the Xxxxx and PTEK of each of the
following conditions, which may be waived in whole or in part in writing:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties of Xxxxx and of the PTEK shall have been true
and correct when made and shall be true and correct as of the Closing Date
with the same force and effect as if made at Closing. The Xxxxx and PTEK
shall have performed all agreements, covenants and conditions required to be
performed prior to Closing. The Company shall have complied with the
statements in paragraph 3.1(a.) through 3.1(I.).
4.2 No Adverse Change. Subsequent to the date of this Agreement and the
Closing, there shall have been no event which has had a material adverse
effect upon the business, financial condition, results of operation, assets,
liabilities or prospects of the Company or the PTEK.
4.3 No Legal Proceeding. No suit, action, or other legal or administrative
proceeding before any court or other governmental agency shall be pending
seeking to enjoin the consummation of this Transaction by any shareholder or
director of the Company or of PTEK.
4.4 Documents to be Delivered by the Xxxxx. The Xxxxx shall have delivered
the following:
A. Stock certificates representing the Shares listed in Paragraph 1.3,
duly endorsed to PTEK and in blank or accompanied by duly executed stock
powers.
B. Such other documents or certificates as shall be reasonably required
by PTEK or its attorney to close or consummate the transaction.
4.5 Documents to be delivered by PTEK.
A. Stock Certificates representing the Exchange Shares of Keystone
Laboratories duly issued to Xxxxx, or their agents or assigns.
B. Such other documents or certificates as shall be reasonably required
by Xxxxx or its attorney to close or consummate the transaction.
ARTICLE V.
MISCELLANEOUS
5.1 Modification. PTEK and Clarks may amend, modify, or supplement this
Agreement in any manner as they mutually agree only in writing.
5.2 Termination and Abandonment. This agreement may be terminated and the
exchange of the shares may be abandoned before this Closing:
a. By the mutual consent of Xxxxx, and PTEK.
b. By PTEK, if the representations and warranties of Xxxxx set forth
shall not be accurate; or any of the conditions precedent set forth in
Article IV shall not have been satisfied in all material respects; or
c. By Xxxxx, if the representations and warranties of PTEK set forth
herein shall not be accurate, or any of the conditions precedent set forth in
Article IV shall not have been satisfied in all materials respects.
d. By any party not in default if the Closing shall not have occurred
on or before August 31, 1996.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefore.
5.3 Assignability. Xxxxx or PTEK may not assign this Agreement without the
express, prior, written consent of the other party.
5.4 Binding Effect. This Agreement, together with all other documentation
delivered as exhibits or part of this transaction constitute the entire
agreement between the parties. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, assigns of the parties hereto.
5.5 Applicable Law. This Agreement and Transaction is are made pursuant to
and will be construed under, the laws of Florida.
5.6 Notices. All notices, requests, demands and other communication
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, certified return receipt requested to:
a.) If to PTEK, to:
Proactive Technologies, Inc.
Xxxx X. Xxxxxx, President
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With Copy to:
Xxxxxx X. Xxxxxxx, Xx., Esquire
0000 Xxxxx'x Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax (000) 000-0000
b.) If to Xxxxx, to:
Xxxx X. Xxxx
Keystone Laboratories, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With Copy to:
Xxxx Xxxxx
G. Xxxxx Xxxxxx, Esquire
X/x Xxxxxx, Xxxxxx & Xxxxxxxx, X.X.
000 XXXXX Xxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Any change in addresses may be made provided written notice is given to the
other parties.
5.7 Headings. The headings contained herein are for reference only and do
not affect in any way the meaning or interpretation of this agreement.
5.8 Severability. If any one or more of the provisions of this Agreement
shall, for any reason, be construed to be invalid, illegal or unenforceable
under applicable law, this Agreement shall be construed as if the invalid,
illegal or unenforceable provision had never been contained therein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
5.9 Attorneys Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
5.10 Integration. This Agreement and all documents and instruments executed
pursuant hereto merge and integrate all prior agreements and representations
respecting the transactions, whether written or oral, and constitute the sole
agreement of the parties in connection therewith. This agreement has been
negotiated by and submitted to the scrutiny of both PTEK and Xxxxx and shall
be given a fair and reasonable interpretation in accordance with the words
hereof, without consideration or weight to its having been drafted by either
party.
5.11 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement
on the date first written above.
PTEK
Witness PROACTIVE TECHNOLOGIES, INC.
By:__________________________
Witness Xxxx X. Xxxxxx, President
Xxxxx Capital Corp.
Witness By:__________________________
Xxxxxxx X. Xxxxx, Xx.
Witness
PROMISSORY NOTE
$1,250,000.00
Tallahassee, FL
July 1, 1996
FOR VALUE RECEIVED, We promise to pay, without defalcation, to the order
of PROACTIVE TECHNOLOGIES, INC., a Delaware corporation, at 0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxx 00000, the sum of ONE MILLION TWO HUNDRED FIFTY
THOUSAND AND 00/100ths ($1,250,000.00) DOLLARS, which shall incur interest at
the rate of eight and one half per cent (8 1/2%) per annum from date in one
lump payment on or before the 31st day of July, l997, or sooner as described
below, at which time the entire outstanding principal indebtedness, in the
amount of ONE MILLION TWO HUNDRED FIFTY THOUSAND AND 00/100ths DOLLARS
($1,250,000.00), together with interest, shall become due and payable at once.
This principal shall be due and payable on the maturity date and be
payable in either cash, cashier's check, money order, or common stock of
Proactive Technologies, Inc. (AMEX:PTE). For purposes of this note PTE stock
shall be valued at $3.50 per share.
Interest payments on this note shall be due quarterly; specifically
monthly payments of $26,562.50 or 7,589 shares of PTE stock shall be due and
owing on October 1, 1996, January 31, 1997, May 31, 1997 and July 31, 1997.
If default is made in the payment of the note when due, then, at the
option of the holder, and without any further notice, the note shall be due
and payable at once and said principal sum shall accrue interest from such
time until paid at eighteen per cent (18%) or the highest rate allowable under
the laws of the State of Florida, whichever is greater. Privilege is given to
pay installments at any time prior to the maturity date, but this shall not
extend the time of maturity of the note. Neither forbearance, nor acceptance
by the holder hereof after default in any payment thereon, shall be deemed
extension.
We, or each us expressly, waive any claim of usury under Florida law,
Federal law, or any other law or regulation of any other municipality, state,
local or otherwise, should enforcement of any of the terms and conditions of
this loan become necessary.
Each maker, surety and endorser hereof, jointly and severally, waives
demand, presentment, protest and notice of protest for nonpayment, and further
agrees to any extension of time of payment, either before or after maturity,
without notice to any of us; and to pay all costs of collection, including
reasonable attorneys' fees in the event of default hereunder.
If default be made in the payment of any of the sums or interest
mentioned herein, or in any of the agreements contained herein, then the
entire principal sum and accrued interest shall, at the option of the holder
hereof, become at once due and collectible with notice, time being of the
essence; Failure to exercise this option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default.
By: By:
Xxxxx Capital Corporation Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.,
President
By: By:
Xxxx X. Xxxx G. Xxxxx Xxxxxx
