As filed with the Securities and Exchange Commission on October 17, 1996
Registration No. 33-86518
File No. 811-5169
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 4
TO
REGISTRATION STATEMENT OF SMALL BUSINESS INVESTMENT COMPANY
UNDER THE SECURITIES ACT OF 1933
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AMENDMENT NO. 8
TO
FORM N-5
UNDER THE INVESTMENT COMPANY ACT OF 1940
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FRESHSTART VENTURE CAPITAL CORP.
(Exact name of registrant as specified in charter)
313 West 53rd Street
New York, New York 10019
(Address of principal executive offices)
ZINDEL ZELMANOVITCH, PRESIDENT
Freshstart Venture Capital Corp.
313 West 53rd Street
New York, New York 10019
(Name and address of agent for service)
With copies to:
C. WALTER STURSBERG, JR., ESQ. STEVEN L. WASSERMAN, ESQ.
Stursberg & Veith Reid & Priest LLP
405 Lexington Avenue, Suite 4949 40 West 57th Street
New York, New York 10174 New York, New York 10019
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the effective date of this
Registration Statement.
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THIS REGISTRATION IF FILED SOLELY TO ADD THE
FORM OF CONSULTING AGREEMENT AS EXHIBIT 99
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the registrant has duly caused this
Post-Effective Amendment No. 4 and Amendment No. 8, respectively, to this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, and State of New York, on the 17th day
of October 1996.
FRESHSTART VENTURE CAPITAL CORP.
(Registrant)
By: /s/ NEIL GREENBAUM
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Neil Greenbaum, Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ ZINDEL ZELMANOVITCH* President and Director October 17, 1996
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Zindel Zelmanovitch
/s/ PEARL GREENBAUM* Vice President and Director October 17, 1996
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Pearl Greenbaum
/s/ NEIL GREENBAUM Secretary and Director October 17, 1996
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Neil Greenbaum
/s/ BARBARA JOY HAMILL* Director October 17, 1996
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Barbara Joy Hamill
/s/ MICHAEL MOSKOWITZ* Director October 17, 1996
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Michael Moskowitz
/s/ EUGENE HABER Director October 17, 1996
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Eugene Haber
/s/ ALAN WORK* Director October 17, 1996
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Alan Work
*By: /s/ NEIL GREENBAUM
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Neil Greenbaum, Attorney-In-Fact
</TABLE>
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EXHIBIT INDEX
Exhibits Page
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<S> <C> <C> <C>
(1.1)* Certificate of Incorporation of Registrant, as amended through November 24, 1987
(Exhibit 1 to Amendment No. 2 to Registrant's Registration Statement on Form N-5 filed
January 5, 1988 (File No. 33-15890) are incorporated by reference herein.
(1.2)* Amendments to the Certificate of Incorporation of Registrant
from November 25, 1987 through May 11, 1993 (Exhibit 1.2 to
Registrant's Registration Statement on Form N-5 filed November
18, 1994 (File No. 33-86518)) are incorporated by reference
herein.
(1.3)* Amendment to Certificate of Incorporation of Registrant filed November 17, 1994.
(1.4)* Form of Amendment to Certificate of Incorporation of Registrant.
(2.1)* By-laws of Registrant, as amended.
(3.1)* Specimen of share of Common Stock, $.01 par value, of Registrant.
(4)* None.
(5)* None.
(6)* None.
(7.1)* Defined Contribution Plan of Registrant (Exhibit 7.1 to
Registrant's Registration Statement on Form N-5 filed November
18, 1994 (File No. 33-86518)) is incorporated by reference
herein.
(8.1)* Copy of Registrant's license from the Small Business Administration (Exhibit 4.(a).
to the Registrant's Registration Statement on Form N-5 filed July 17, 1987 (File No.
33-15890)) is incorporated by reference herein.
(9.1)* Letter of Intent dated as of December 1, 1992 by and between
Registrant and the U.S. Small Business Administration (Exhibit
9.1 to Registrant's Registration Statement on Form N-5 filed
November 18, 1994 (File No. 33-86518)) is incorporated by
reference herein.
(9.2)* Loan Agreement dated January 15, 1995 between Registrant and Extebank.
(9.3)* Form of Employment Agreement to be entered into between the Registrant and Zindel
Zelmanovitch.
(9.4)* Form of Employment Agreement to be entered into between the Registrant and Neil
Greenbaum.
(9.5)* Lease dated October 1, 1994 by and between Registrant and 313 West 53rd Street
Association.
(10.1)* Form of Underwriting Agreement relating to the offering of shares.
(11.1)* Opinion of Stursberg & Veith as to the legality of the securities being registered
hereunder and the issuance thereof.
(12.1)* Consent of Michael C. Finkelstein, Certified Public Accountants.
(13.1)* Code of Ethics of Registrant (Exhibit 8 to the Registrant's Registration Statement on
Form N-5 filed July 17, 1987 (File No. 33-15890)) is incorporated by reference.
(14.1)* Form of Representative Warrant Agreement.
(15.1) Form of Consulting Agreement.
(16.1)* Form of Stock Option Plan.
(17.1)* Financial Data Schedule.
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* Previously filed or incorporated by reference.
FINANCIAL CONSULTING AGREEMENT
This Agreement is made on , by and between FRESHSTART VENTURE CAPITAL
CORP., a New York corporation having its principal office at 313 West 53rd
Street, Third Floor, New York, New York 10019 (the "Company") and SUPPES
SECURITIES, INC., a New York corporation having its principal office at 225 Park
Avenue, Suite 211, New York, New York 10169 ("Consultant").
In consideration of the mutual promises contained herein and on the terms
and conditions hereinafter set forth, the Company and Consultant agree as
follows:
1. PROVISION OF SERVICES.
(a) Consultant shall, to the extent reasonably required in the conduct
of the business of the Company, place at the disposal of the Company its
judgement and experience and, to such extent and at the prior written request of
the President of the Company, provide business development and corporate finance
services to the Company, including without limitation the following:
(i) evaluation of the Company's managerial and financial
requirements;
(ii) assistance when requested by the Company in recruiting,
screening, evaluating and recommending key personnel, directors,
accountants, commercial and investment bankers, underwriters,
attorneys and other professional consultants;
(iii) assistance in the preparation of budgets and business
plans;
(iv) advice with regard to stockholder relations and public
relations matters; and
(v) evaluation of financial requirements and assistance in
financial arrangements.
Notwithstanding the foregoing, Consultant shall not provide services to the
Company hereunder in connection with mergers, acquisitions, consolidations,
joint ventures and similar corporate finance transactions.
(b) Consultant shall use its best efforts in the furnishing of advice
and recommendations, and for this purpose Consultant shall at all times maintain
or keep and make available qualified personnel or a network of qualified outside
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professionals for the performance of its obligations under this Agreement. To
the extent reasonably practicable, Consultant shall so use its own personnel
rather than outside professionals.
2. COMPENSATION. In consideration of Consultant's services hereunder,
the Company shall pay Consultant a consulting fee of $50,000, payable in advance
on the effective date hereof (that being the date that the Company receives from
the Securities and Exchange Commission an exemptive order or other confirmation
that the Company may enter into this Agreement and pay the consulting fee
provided hereby pursuant to the Investment Company Act of 1940, as amended; it
being expressly understood and agreed that Consultant shall not be under any
obligation to perform hereunder until the effective date hereof).
3. EXPENSES. The Company shall reimburse Consultant for reasonable
expenses incurred by Consultant in connection with its services rendered
hereunder. All expenses in excess of $500.00 shall be approved in writing by the
Company in advance. Consultant shall invoice the Company for its expenses
incurred. Payment of invoices shall be due upon receipt.
4. LIABILITY; INDEMNIFICATION.
(a) It is expressly understood and agreed that, in furnishing the
Company with management advice and other services as herein provided, neither
Consultant nor any of its officers, directors, employees or agents (including
without limitation any person designated by Consultant for election to the
Company's Board of Directors or to attend meetings thereof (the "Observer"))
shall be liable to the Company, its stockholders or its creditors for errors of
judgment or for any act or omission except willful malfeasance, bad faith or
gross negligence in the performance of its duties hereunder. It is further
understood and agreed that Consultant may rely upon information furnished to it
and reasonably believed by it to be accurate and reliable and that, except as
herein provided, Consultant shall not be liable for any loss suffered by the
Company, or by any officer, director, employee, stockholder or creditor of the
Company, by reason of the Company's action or non-action on the basis of any
advice, recommendation or approval of Consultant or any of its officers,
directors, employees or agents.
(b) The Company shall indemnify, save harmless and defend
Consultant and its officers, directors, employees and agents (including without
limitation the Observer) from, against and in respect of any loss, damage,
liability, judgment, cost or expense whatsoever, including counsel fees,
suffered or incurred by it or him by reason of, or on account of, its status or
activities as a consultant to the Company hereunder (and, in the
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case of the Observer, his participation in meetings of the Board of Directors of
the Company), except for any loss, damage, liability, judgment, cost or expenses
resulting from willful malfeasance, bad faith or gross negligence in the
performance of Consultant's duties hereunder.
(c) Consultant shall indemnify, save harmless and defend the
Company and its officers, directors, employees and agents from, against and in
respect of any loss, damage, liability, judgment, cost or expense whatsoever,
including counsel fees, suffered or incurred by it or him by reasons of, or on
account of, willful malfeasance, bad faith or gross negligence in the
performance of Consultant's duties hereunder.
5. STATUS OF CONSULTANT. Consultant shall at all times be an
independent contractor of the Company and, except as expressly provided or
authorized by this Agreement, shall have no authority to act for or represent
the Company.
6. OTHER ACTIVITIES OF CONSULTANT. The Company recognizes that
Consultant now renders and may continue to render management and other services
to other companies which may or may not have policies and conduct activities
similar to those of the Company. Consultant shall be free to render such advice
and other services and the Company hereby consents thereto. Consultant shall not
be required to devote its full time and attention to the performance of its
duties under this Agreement, but shall devote only so much of its time and
attention as it deems reasonable or necessary for such purposes.
7. CONTROL. Nothing contained herein shall be deemed to require the
Company to take any action to its Certificate of Incorporation or By-laws, or
any applicable statue or regulation, or to deprive its Board of Directors of its
responsibility for and control of the conduct of the affairs of the Company.
8. TERM. Except as provided by Section 1(b) hereof, Consultant's
performance of services hereunder shall be for a term of two years commencing on
the effective date hereof.
9. IN GENERAL. This Agreement sets forth the entire agreement and
understanding between the parties with respect to its subject matter and
supersedes all prior discussions, agreements and understandings of every and any
nature between them with respect thereto. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without
reference to such State's principles respecting the conflict of laws.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their respective officers or representatives duly authorized on the
day and year first above written.
FRESHSTART VENTURE CAPITAL CORP.
By:
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Its
SUPPES SECURITIES, INC.
By:
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Its
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