STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT ("Agreement") is entered into this _____ of
January, 1999, by and among Proactive Technologies, Inc.., a Delaware
corporation (hereinafter referred to as "Buyer"); and ▇▇▇▇ ▇▇▇▇▇▇
(hereinafter referred to as "Seller").
WHEREAS, Seller is the owner of record and beneficially owns Five Million
(5,000,000) shares of the issued and outstanding shares of Common Stock of
Proactive Technologies, Inc. (the "Shares"); and
WHEREAS, Seller desires to sell all of the Shares to Buyer, and Buyer
desires to purchase the Shares, upon the terms and conditions set forth
herein, and
WHEREAS, the parties intend that the exchange of Shares for shares of
Seller's common stock, as contemplated herein, qualify as a tax free
transaction under Section 368 of the Internal Revenue Code.
NOW, THEREFORE, 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 hereto
agree as follows:
I.
SALE AND PURCHASE OF THE SHARES
1.1 Sale and Purchase. Subject to the terms and conditions hereof,
at the Closing (as defined in paragraph 1.2 below), Seller agrees to sell,
assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase
from Seller, the Shares listed in Exhibit "A", attached hereto.
1.2 Closing. The purchase shall be consummated at a closing
("Closing") to take place at 11:00 o'clock a.m., at the offices of Seller's
counsel on January ___, 1999 ("Closing Date").
1.3 Purchase Price. The aggregate purchase price ("Purchase Price")
for the Shares shall be One Hundred (100) shares of ▇▇▇▇▇ Holdings, Inc., a
Florida corporation ("▇▇▇▇▇") common stock, attached hereto as Exhibit"B"
which represents 100% of all the issued and outstanding shares of ▇▇▇▇▇.
1.4 Other Agreements. At the Closing, the indicated parties shall
execute and deliver the following additional agreements in substantially the
form attached hereto:
(a) Stock certificates representing all of the Shares, duly endorsed
to Buyer and in blank or assignments separate from the certificates,
transferring the Shares from Seller to Buyer, copies of which are attached
hereto as Exhibit "C".
(b)Consulting Agreement between Buyer and ▇▇▇▇ ▇▇▇▇▇▇ attached
hereto as Exhibit "D".
(c)Resignation of ▇▇▇▇ ▇▇▇▇▇▇ as President and Director of Proactive
Technologies, Inc. and all of its subsidiaries.
(d)Mutual Release Agreement between Buyer and Seller attached hereto
as Exhibit "E".
(e)Indemnification Agreement attached hereto as Exhibit "F".
(f)Profit Sharing Agreement attached hereto as Exhibit "G".
1.5 Basic Agreements and Transactions Defined. This Agreement and
the other agreement listed in paragraph 1.4, are sometimes referred to as the
"Basic Agreements". The transactions contemplated by the Basic Agreements are
sometimes referred to as the "Transactions".
II.
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer, with respect to the Shares owned by Seller, as
follows:
(a) Title to the Shares. Seller owns at Closing and of record and
beneficially the number of the Shares listed in Exhibit "A", of the Company,
free and clear of all liens, encumbrances, pledges, claims, options, charges
and assessments of any nature whatsoever, with full right and lawful authority
to transfer the Shares to Buyer. No person has any preemptive rights or
rights of first refusal with respect to any of the Shares. There exists no
voting agreement, voting trust, or outstanding proxy with respect to any of
the Shares. There are no outstanding rights, options, warrants, calls,
commitments, or any other agreements of any character, whether oral or
written, with respect to the Shares.
(b) Authorization of Transaction. The Seller has full power and
authority (including, if the Seller is a corporation, full corporate power and
authority) to execute and deliver the Basic Agreements and to perform his
obligations thereunder. The Basic Agreements constitute a valid and legally
binding obligation of the Seller, enforceable in accordance with its terms and
conditions. The Seller need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by
the Basic Agreements.
(c)Brokers' Fees. The Seller has no liability or obligation to pay
any fees or commissions
to any broker, finder, or agent with respect to the transactions contemplated
by this Agreement for which the Buyer could become liable or obligated.
2.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Organization. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Delaware. Buyer
has all requisite corporate power and authority to complete this transaction
and carry on its business. Buyer is duly qualified and in good standing with
the State of Delaware.
(b) Authorization of Transaction. The Buyer has full power and
authority (including, if the Buyer is a corporation, full corporate power and
authority) to execute and deliver the Basic Agreements and to perform his
obligations thereunder. The Basic Agreements constitute a valid and legally
binding obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing with, or
obtain any authorization , consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by
the Basic Agreements.
(c) Assets of ▇▇▇▇▇. which will have $700,000 in cash and
Golden Eagle tract of property, which is currently under contract with the
▇▇▇▇▇ group, Twin Action realty, and which consists of the following
property: 38 lots in The Landing at Golden Eagle Phase I, 39 developed lots
in Golden Eagle ▇▇▇▇▇ ▇ & ▇, ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇, raw land for The
Landings at Golden Eagle Phase II, raw land for Golden Eagle Unit 6, and the
office building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
III.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the Transactions contemplated hereby is
subject to the fulfillment by Seller prior to Closing of each of the following
conditions, which may be waived in whole or in part by Buyer:
3.1 Compliance with Representations and Warranties . The
representations and warranties of Seller contained in this Agreement shall
have been true and correct when made and shall be true and correct as of the
Closing with the same force and effect as if made at the Closing. Seller
shall have performed all agreements, covenants and conditions required to be
performed by Seller prior to the Closing.
3.2 No Legal Proceedings. No suit, action or other legal or
administrative proceeding before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the
Transactions contemplated hereby.
3.3 Documents to be Delivered by Seller. The Company and Seller
shall have delivered the following documents:
(a) Stock certificates representing all of the Shares, duly endorsed
to Buyer and in blank or accompanied by duly executed stock powers, copies of
which are attached as Exhibit "B".
(b) Such other documents or certificates as shall be reasonably
required by Buyer or its counsel in order to close and consummate this
Agreement.
IV.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to close the Transactions is subject to the
fulfillment prior to Closing of each of the following conditions, any of which
may be waived in whole or in part by Seller:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties made by Buyer in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects at the Closing with the same force and effect as if made at the
Closing, and Buyer shall have performed all agreements, covenants and
conditions required to be performed by Buyer prior to the Closing.
4.2 No Legal Proceedings. No suit, action or other legal or
administrative proceedings before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the
Transactions contemplated hereby.
4.3 Other Agreements. All parties other than Seller shall have
executed and delivered the Basic Agreements.
4.4 Payments. Buyer shall deliver stock certificates to Seller
representing all of the issued and outstanding shares of ▇▇▇▇▇ Holdings, Inc.
duly endorsed to Seller. At Closing, the Company shall execute two deeds to
be held in escrow, one deeding the aforementioned Golden Eagle tract property
to Twin Action Properties, Inc., pursuant to the existing contract, and
another deeding the same property to ▇▇▇▇▇ Holdings, Inc., a Florida
corporation, which deed is to be recorded in the event that Twin Action does
not consummate its transaction by January 28, 1999.
4.5 Assignment of Agreements. The Company agrees to assign both
its agreement with the Golden Eagle Country Club and its agreement with
Talquin Electric Cooperative to the party receiving the deed to the property
at Closing.
V.
MODIFICATION, WAIVERS, TERMINATION
AND EXPENSES
5.1 Modification. Buyer and Seller may amend, modify or supplement
this Agreement in any manner as they may mutually agree in writing.
5.2 Waivers. Buyer and Seller may in writing extend the time for or
waive compliance by the other with any of the covenants or conditions of the
other contained herein.
5.3 Termination and Abandonment. This Agreement may be terminated
and the purchase of the Shares may be abandoned before the Closing:
(a) By the mutual consent of Seller and Buyer;
(b) By Buyer, if the representations and warranties of Seller set
forth herein shall not be accurate, or the conditions precedent set forth in
Article III shall have not have been satisfied, in all material respects; or
(c) By Seller, if the representations and warranties of Buyer set
forth herein shall not be accurate, or the conditions precedent set forth in
Article IV shall not have been satisfied in all material respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefor.
VI.
MISCELLANEOUS
6.1 Representations and Warranties to Survive. Unless otherwise
provided, all of the representations and warranties contained in this
Agreement and in any certificate, exhibit or other document delivered pursuant
to this Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any party hereto or their representatives shall
constitute a waiver of any representation or warranty, and no such
representation or warranty shall be merged into the Closing.
6.2 Binding Effect of the Basic Agreements. The Basic Agreements and
the certificates and other instruments delivered by or on behalf of the
parties pursuant thereto, constitute the entire agreement between the
parties. The terms and conditions of the Basic Agreements shall inure to the
benefit of and be binding upon the respective heirs, legal representatives,
successor and assigns of the parties hereto. Nothing in the Basic Agreements,
expressed or implied, confers any rights or remedies upon any party other than
the parties hereto and their respective heirs, legal representatives and
assigns. Whenever Seller is authorized to act hereunder, any action
authorized by members of Seller holding a majority of the Shares shall be
deemed the act of and binding on all members of Seller.
6.3 Applicable Law. The Basic Agreements are made pursuant to, and
will be construed under, the laws of the State of Florida.
6.4 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, first class postage prepaid:
(a) If to Seller, to:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Buyer, to:
Proactive Technologies, Inc.
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
These addresses may be changed from time to time by written notice to the
other parties.
6.5 Headings. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
6.6 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will
constitute one instrument.
6.7 Severability. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable under applicable law this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. The remaining provisions of this Agreement shall be given effect to
the maximum extent then permitted by law.
6.8 Forbearance; Waiver. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure or actual waiver imply or
constitute waiver of subsequent default or breach.
6.9 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.
6.10 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.
6.11 Integration. This Agreement and all documents and instruments
executed pursuant hereto merge and integrate all prior agreements and
representations respecting the Transactions, whether written or oral, and
constitute the sole agreement of the parties in connection therewith. This
Agreement has been negotiated by and submitted to the scrutiny of both Seller
and Buyer and their counsel and shall be given a fair and reasonable
interpretation in accordance with the words hereof, without consideration or
weight being given to its having been drafted by either party hereto or its
counsel.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement on the date first written above.
"BUYER"
PROACTIVE TECHNOLOGIES, INC.
By:________________________________
▇▇▇▇▇▇ ▇▇▇▇▇, Vice-President
"SELLER"
___________________________________
▇▇▇▇ ▇▇▇▇▇▇
List of Exhibits to Agreement:
A Shares of Stock Owned by Seller
B Outstanding Warrants, Options, Calls with regard to its Stock
C Contracts and Agreements of the Company re Profits or Assets
D Undisclosed Liabilities
E Exceptions to Title
F Insurance held by the Company
G Transactions with Certain Persons
H Material Contracts of the Company
I Employment Matters of the Company
J Authorizations of the Company
L Outstanding Rights, Options, Warrants, Commitments etc. to
Issue Shares of Buyer
K Employment Matters of Buyer
L Authorizations of Buyer