As filed with the Securities and Exchange Commission on August 11, 1997.
File No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
PRENTICE CAPITAL, INC.
(Exact name of issuer as specified in its charter)
Delaware 84-1139554
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2898 University Drive
Suite 43
Coral Springs, Florida 33065
(Address of principal executive offices) (Zip Code)
__________________
MANAGEMENT CONSULTING AGREEMENT
WITH CORP-LINK CORPORATION
CONSULTING AND ACQUISITION MANAGEMENT
AGREEMENT WITH HONG KONG TRADING LTD.
(Full title of the plan)
__________________
Lee J. Unger
President
2898 University Drive
Suite 43
Coral Springs, Florida 33065
Telephone No.: (954) 340-5916
(Name and address of agent for service)
Copy to:
James M. Schneider, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
__________________
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered share(1) price fee (1)
================================================================================
Common Stock 800,000 $0.75 $600,000 $181.82
($.03 par value) shares
Common Stock 670,000(2) $0.25 $167,500 $ 50.76
($.03 par value) shares
-------
TOTAL $232.58
=======
================================================================================
(1) Pursuant to Rule 457(h), the maximum offering price with, regard to
800,000 shares was calculated based upon the average of the bid and
asked prices of the Common Stock of the Company on the OTC Bulletin Board
on August 7, 1997.
(2) Represents shares of Common Stock underlying Common Stock Purchase
Options. Pursuant to Rule 457(h) the maximum offering price was
calculated based on the exercise price of such Options as described
herein.
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PRENTICE CAPITAL, INC.
CROSS REFERENCE SHEET REQUIRED BY ITEM 501(b) OF REGULATION S-K
Form S-8 Item Number
and Caption Caption in Prospectus
-------------------- ---------------------
1. Forepart of Registration State- Facing Page of Registration
ment and Outside Front Cover Statement and Cover Page of
Page of Prospectus Prospectus
2. Inside Front and Outside Back Inside Cover Page of Pro-
Cover Pages of Prospectus spectus and Outside Cover
Page of Prospectus
3. Summary Information, Risk Fac- Not Applicable
tors and Ratio of Earnings to
Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Sales by Selling Security
Holder
8. Plan of Distribution Cover Page of Prospectus
and Sales by Selling
Security Holder
9. Description of Securities to be Description of Securities;
Registered Consulting Agreements
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Infor- Incorporation of Certain
mation by Reference Documents by Reference
13. Disclosure of Commission Posi- Indemnification of Direc-
tion on Indemnification for tors and Officers; Under-
Securities Act Liabilities takings
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PROSPECTUS
PRENTICE CAPITAL, INC.
1,470,000 Shares of Common Stock
Issued Pursuant to the
Company's Management Consulting Agreement
with Corp-Link Corporation and
Consulting and Acquisition Management
Agreement with Hong Kong Trading Ltd.
This Prospectus is part of a Registration Statement which registers an
aggregate of 1,470,000 shares of Common Stock, $.03 par value (such shares being
referred to as the "Shares"), of Prentice Capital Corporation, a Delaware
corporation (the "Company" or "Prentice") which have been issued or may be
issued, as set forth herein, to (i) Corp-Link Corporation, a Florida corporation
("Corp-Link") pursuant to a written Management Consulting Agreement dated March
10, 1997 (the "Corp-Link Consulting Agreement"), providing for the issuance of
500,000 Shares and Common Stock Purchase Options (the "Options") to purchase up
to 670,000 Shares, as set forth herein, and (ii) Hong Kong Trading Ltd., a
British West Indies corporation ("Hong Kong"), pursuant to a written Consulting
and Acquisition Management Agreement dated August 1, 1997 (the "Hong Kong
Consulting Agreement"), providing for the issuance of 300,000 Shares. Corp-Link
and Hong Kong may sometimes hereafter be collectively referred to as the
"Consultants," and the Corp-Link Consulting Agreement and the Hong Kong
Consulting Agreement may sometimes be collectively referred to as the
"Consulting Agreements." In addition, the Consultants in their capacities as
selling shareholders may sometimes hereafter be collectively referred to as the
"Selling Security Holders." All of the Shares are being issued to the
Consultants pursuant to written consulting agreements. The Company has been
advised by the Selling Security Holders that they may sell all or a portion of
their Shares from time to time in the over-the-counter market, in negotiated
transactions, directly or through brokers or otherwise, and that such Shares
will be sold at market prices prevailing at the time of such sales or at
negotiated prices, and the Company will not receive any proceeds from such
sales.
No person has been authorized by the Company to give any information or to
make any representation other than as contained in this Prospectus, and if given
or made, such information or representation must not be relied upon as having
been authorized by the Company. Neither the delivery of this Prospectus nor any
distribution of the Shares issuable under the terms of the Consulting Agreements
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED ON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
__________________
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL SECURITIES IN ANY
STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH STATE.
The date of this Prospectus is August __, 1997.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed with the Commission can be inspected and copied at
the public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Copies of this material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission at http://www.sec.gov. The Company's Common
Stock is traded on the OTC Bulletin Board under the symbol "PCAP."
The Company has filed with the Commission a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act"), with respect to the resale of up to an aggregate of up to 1,470,000
shares of the Company's Common Stock, to be issued to the Consultants pursuant
to written Consulting Agreements with the Company. This Prospectus, which is
Part I of the Registration Statement, omits certain information contained in the
Registration Statement. For further information with respect to the Company and
the shares of the Common Stock offered by this Prospectus, reference is made to
the Registration Statement, including the exhibits thereto. Statements in this
Prospectus as to any document are not necessarily complete, and where any such
document is an exhibit to the Registration Statement or is incorporated by
reference herein, each such statement is qualified in all respects by the
provisions of such exhibit or other document, to which reference is hereby made,
for a full statement of the provisions thereof. A copy of the Registration
Statement, with exhibits, may be obtained from the Commission's office in
Washington, D.C. (at the above address) upon payment of the fees prescribed by
the rules and regulations of the Commission, or examined there without charge.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
1. The Company's Form 10-SB Registration Statement.
2. The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996.
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3. The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1997.
4. All reports and documents filed by the Company pursuant to Section
13, 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
date of filing of such documents. Any statement incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of
this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Corporate Secretary, Prentice
Capital, Inc., 2898 University Drive, Suite 43, Coral Springs, Florida 33065.
6
<PAGE>
THE COMPANY
Prentice Capital, Inc. was incorporated under the laws of the State of
Florida on March 26, 1990 to obtain funding in order to establish a vehicle to
take advantage of business opportunities.
On March 17, 1997, the Company and Chartwell International, Inc., a Nevada
corporation, entered into a Purchase and Sale Agreement pursuant to which the
Company purchased certain gypsum mining property located in Washington County,
Utah, generally known as Riverview Placer Claims and New Riverview Claims in
exchange for $4,000,000 in cash, cash equivalents and restricted shares of the
Company's Common Stock.
On March 10, 1997, the Company and Lee J. Unger ("Unger") entered into an
agreement (the "Unger Agreement") pursuant to which the Company agrees to sell
to Unger 5,000,000 shares of its restricted Common Stock at a price of $.05 per
share, which purchase will be effected by delivery to Unger of an assignable
Promissory Note bearing interest at 6% per annum and due and payable one year
from the date of the Promissory Note.
Pursuant to the Unger Agreement, the Company has caused the election of
Unger as President and director of the Company and has received simultaneously
with the Unger Agreement, the resignations of Alan S. Lipstein and Dr. Gerard
Norton as officers and directors of the Company leaving Unger as the sole
officer and director of the Company.
On June 3, 1997, the Company entered into a Stock Purchase Agreement
("Agreement") with U.S.A. Diagnostics, Inc., a Florida corporation
("Diagnostics"), and its sole shareholder, Nate Hollander, for the acquisition
of 100% of the capital stock of Diagnostics and the assets of MRI Management
Services, Inc. ("MMS") and Bentley Designers and Builders, Inc. ("BDB"),
consisting of two Magnetic Resonance Imaging ("MRI") units. Mr. Hollander is the
sole shareholder of MMS and BDB, each of which owns one mobile MRI unit with an
estimated value of $500,000 each. Diagnostics is in the business of magnetic
resonance imaging and neurological nerve conduction testing in the South Florida
area.
The aggregate purchase price of Diagnostics and the two MRI units is
$5,500,000 payable $4,000,000 in cash at the closing, and shares of restricted
Common Stock of the Company having a value of $1,500,000, determined by the
average closing bid price over the five trading day period preceding the date of
the Agreement. Within 45 days of signing the Agreement, the Company is to
deposit $1,750,000 into an escrow account, and within 75 days the Company is to
use its best efforts to obtain a firm commitment underwriting, represented by a
letter of intent satisfactory to Mr. Hollander, and to raise net proceeds of no
7
<PAGE>
less than $2,500,000 to be used as part of the cash required for closing.
According to the Agreement, the Company is to have an effective registration
statement and closing of the firm commitment underwriting within 175 days of
this Agreement. Should the Company fail to secure a firm commitment underwriting
within 45 days or have a firm commitment underwriting within 75 days, or such
longer period as the parties may mutually agree, then the escrowed funds will be
returned to the Company and the Agreement will terminate. The shares
representing the $1,500,000 are to be paid 10% at the closing and the remaining
90% on February 2, 1998. However, in the event closing does not occur prior to
February 2, 1998, then the entire 100% of the shares will be paid at closing.
There can be no assurances that the Agreement will be consummated.
CONSULTING AGREEMENTS
MANAGEMENT CONSULTING AGREEMENT WITH CORP-LINK
On March 10, 1997 the Company entered into a Management Consulting
Agreement with Corp-Link Corporation pursuant to which the Company agreed to
issue to Corp-Link Corporation an aggregate of 500,000 shares of Common Stock
and Options to purchase up to 670,000 Shares of Common Stock of the Company in
consideration for consulting services to be provided to the Company over an
anticipated twelve-month period commencing as of the date of the Corp-Link
Consulting Agreement. Under the terms of the Corp-Link Consulting Agreement, the
Consultant is to undertake for and consult with the Company concerning
management, marketing and operational planning and consulting, expansion of
operations on an international basis, strategic planning, corporate organization
and structure, examination of products and services and shareholder relations.
In addition, the Consultant shall review and advise the Company regarding its
overall progress, needs and condition. Corp- Link is wholly-owned by Mr. Matt
Dwyer, who is the sole officer and director of Corp-Link. Mr. Dwyer, on behalf
of Corp-Link, is expected to spend a predominant portion of his working time
over the term of the Management Consulting Agreement on behalf of the Company.
Each of the Options are exercisable at $.25 per Share on or prior to March 10,
1999. The Options will be listed in the name of Mr. Matt Dwyer.
In particular, the Consultant shall provide the following enumerated
services: (i) the implementation of short range and long term strategic planning
to fully develop and enhance the Company's assets, resources, products and
services; (ii) the implementation of a marketing program to assist the Company
in broadening the markets for its business and services and promote the image of
the Company and its business and services; (iii) assisting the Company in the
monitoring of services provided by the Company's advertising firm, public
relations firm and other professionals to be employed by the Company; (iv)
8
<PAGE>
advising the Company relative to the continued development of a customer
relations program and to stimulate interest in the Company by institutional
investors and other members of the financial community; (v) advising the Company
relative to the recruitment and employment of key executives consistent with the
expansion of operations of the Company; (vi) advise and recommend to the Company
additional services relating to the present business and services provided by
the Company as well as new products and services that may be provided by the
Company.
CONSULTING AND ACQUISITION MANAGEMENT AGREEMENT WITH HONG KONG TRADING LTD.
In August 4, 1997, the Company entered into a Consulting and Acquisition
Management Agreement with Hong Kong Trading Ltd. pursuant to which the Company
agreed to issue to Hong Kong 300,000 shares of Common Stock of the Company in
consideration for consulting services to be provided to the Company over an
anticipated one-year period commencing as of the date of the Hong Kong
Consulting Agreement. In addition, the Company will reimburse Hong Kong for its
reasonable out-of-pocket expenses from time to time upon submission of itemized
vouchers in support thereof. Hong Kong is wholly-owned by Mr. Robert Vasquez,
who is the sole officer and director of Hong Kong. Mr. Vasquez is expected to
spend a substantial portion of his working time during the course of this
agreement, depending on the nature of services requested by the Company and the
extent to which Mr. Vasquez is requested, to administer acquisitions.
Initial services relative to the performance under the Hong Kong
Consulting Agreement has already commenced. Under the terms of the Hong Kong
Consulting Agreement, Hong Kong is to provide the following services for the
benefit of the Company (i) the identification, evaluation, structuring,
negotiating and closing of business acquisitions, whether in the form of asset
purchases, stock purchases, mergers, consolidations, joint ventures, strategic
alliances or otherwise (hereinafter collectively referred to as "Acquisitions"),
for the account of the Company upon such terms and conditions as are reasonably
acceptable to the Company' and (ii) if requested by the Company, managing and
operating each such consummated Acquisition. Following the consummated
Acquisition of a target company by the Company, at the written request of the
Company, Hong Kong shall participate, subject to the direction of the Company's
Board of Directors, in the management and day-to-day operations of such
Acquisition for compensation to be predicated on the size and scope of
operations to be conducted by the company to be acquired.
FEDERAL INCOME TAX EFFECTS
The following discussion applies to the Common Stock issued under the
Consulting Agreements and is based on federal income tax laws and regulations in
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effect on December 31, 1996. In connection with the issuance of Common Stock as
compensation payable to the Consultants under the Consulting Agreements, the
Consultants must include in gross income the excess of the fair market value of
the property received over the amount, if any, paid for the property in the
first taxable year in which a Consultant's beneficial interest in the property
either is "transferable" or is not subject to a "substantial risk of
forfeiture." A substantial risk of forfeiture exists where rights and property
that have been transferred are conditioned, directly or indirectly, upon the
future performance (or refraining from performance) of substantial services by
any person, or the occurrence of a condition related to the purpose of the
transfer, and the possibility of forfeiture is substantial if such condition is
not satisfied. Common Stock received by a person who is subject to the short
swing profit recovery rule of Section 16(b) of the Securities Exchange Act of
1934 is considered subject to a substantial risk of forfeiture so long as the
sale of such property at a profit could subject the stockholder to suit under
that section. The rights of the Consultants are treated as transferable if and
when a Consultant can sell, assign, pledge or otherwise transfer any interest in
the Common Stock to any person. Inasmuch as the Consultants are not expected to
be subject to the short swing profit recovery rule of Section 16(b) of the
Securities Exchange Act of 1934 and the Common Stock, upon receipt following
satisfaction of condition prerequisites to receipt, will be presently
transferable and not subject to a substantial risk of forfeiture, a Consultant
would be obligated to include in gross income the fair market value of the
Common Stock received once the conditions to receipt of the Common Stock are
satisfied.
An Option holder does not recognize taxable income on the date of the
grant of the Option, which is a non-statutory option, but recognizes ordinary
income generally at the date of exercise in the amount of the difference between
the Option exercise price and the fair market value of the Common Stock on the
date of exercise. However, if the holder is subject to the restrictions on
resale of common stock under Section 16 of the Securities Exchange Act of 1934,
such person generally recognizes ordinary income at the end of the six-month
period following the date of exercise in the amount of the difference between
the option exercise price and the fair market value of the Common Stock at the
end of the six-month period. Nevertheless, such holder may elect within 30 days
after the date of exercise to recognize ordinary income as of the date of
exercise. The amount of ordinary income recognized by the Option holder is
deductible by the Company in the year that income is recognized.
RESTRICTIONS UNDER SECURITIES LAWS
The sale of any shares of Common Stock received must be made in compliance
with federal and state securities laws. Officers, directors and 10% or greater
stockholders of the Company, as well as certain other persons or parties who may
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effect on December 31, 1996. In connection "affiliates" of the Company under the
Federal Securities Laws, should be aware that resales by affiliates can only be
made pursuant to an effective Registration Statement, Rule 144 or any other
applicable exemption. Officers, directors and 10% and greater stockholders are
also subject to the "short swing" profit rule of Section 16(b) of the Securities
Exchange Act of 1934. Section 16(b) of the Exchange Act generally provides that
if an officer, director or 10% and greater stockholder sold any Common Stock of
the Company he would generally be required to pay to the Company any "profits"
resulting from the sale of the stock.
SALES BY SELLING SECURITY HOLDERS
The following table sets forth the name of the Selling Security Holders,
the amount of shares of Common Stock held directly or indirectly by the Selling
Security Holders, the maximum amount of shares of Common Stock to be offered by
the Selling Security Holders, the amount of Common Stock to be owned by the
Selling Security Holders following sale of such shares of Common Stock and the
percentage of shares of Common Stock to be owned by the Selling Security Holders
following completion of such offering (based on 11,529,142 shares of Common
Stock of the Company outstanding at July 31, 1997).
Percentage
Shares to be to be Owned
Name of Selling Number of Shares to Owned After After
Security Holder Shares Owned be Offered Offering Offering
- --------------- ------------ ---------- -------- --------
Matt Dwyer 1,170,000* 1,170,000* -0- --
Robert Vasquez 300,000 300,000 -0- --
_______________
* Includes up to 670,000 Shares underlying the Options.
DESCRIPTION OF SECURITIES
The Company is currently authorized to issue up to 500,000,000 shares of
Common Stock, $.03 par value per share, of which 11,529,142 shares were
outstanding as of July 31, 1997. The Company is authorized to issue up to
10,000,000 shares of Preferred Stock, $.0001 par value per share, none of which
were outstanding as of July 31, 1997.
Subject to the dividend rights of the holders of preferred stock, holders
of shares of Common Stock are entitled to share, on a ratable basis, such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. Upon liquidation, dissolution or winding up of the Company,
after payment to creditors and holders of preferred stock that may be
outstanding, the assets of the Company will be divided pro rata on a per share
basis among the holders of the Common Stock.
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Each share of Common Stock entitles the holders thereof to one vote.
Holders of Common Stock do not have cumulative voting rights which means that
the holders of more than 50% of the shares voting for the election of Directors
can elect all of the Directors if they choose to do so, and, in such event, the
holders of the remaining shares will not be able to elect any Directors. The
ByLaws of the Company require that only a majority of the issued and outstanding
shares of Common Stock of the Company need be represented to constitute a quorum
and to transact business at a shareholders' meeting. The Common Stock has no
preemptive, subscription or conversion rights and is not redeemable by the
Company.
PREFERRED STOCK
The Board of Directors is authorized to issue the authorized and unissued
preferred stock in one or more series, to fix or alter the rights, preferences,
privileges and restrictions, including the dividend rights, dividend rate,
conversion rights, voting rights and terms of redemption, liquidation
preferences and sinking fund of any series of preferred stock which is
authorized and unissued. No shares of Preferred Stock have been issued or are
outstanding as of the date hereof.
OVER-THE-COUNTER MARKET
The Company's Common Stock is traded on the OTC Bulletin Board of the
National Association of Securities Dealers, Inc. under the symbol "PCPL."
TRANSFER AGENT
The Transfer Agent for the shares of Common Stock is Corporate Stock
Transfer, whose address is 370 17th Street, Suite 2350, Denver, Colorado 80202.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for the Company by Atlas, Pearlman, Trop & Borkson,
P.A., Special Counsel for the Company, Fort Lauderdale, Florida.
INDEMNIFICATION
Section 145 of the General Corporation Law of Delaware, under which
jurisdiction the Company is incorporated, empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
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threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. The corporation may indemnify
against expenses (including attorneys' fees) and, other than in respect of an
action by or in the right of the corporation, against judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in the manner he or she reasonably believed to be in or non-opposed to the
best interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the right of the corporation, no
indemnification of expenses may be made in respect to any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
the action was brought shall determine that, despite the adjudication of
liability, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 of the General
Corporation Law of Delaware further provides that to the extent a director,
officer, employee or agent of the corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
The Company's By-Laws provide "To the fullest extent permitted by the
Delaware General Corporation Law a director of this corporation shall not be
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director."
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------- ---------------------------------------
The documents listed in (1) through (6) below are incorporated by
reference in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
(1) The Company's Form 10-SB Registration Statement.
(2) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996.
(3) The Company's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1997.
(4) All reports and documents filed by the Company pursuant to
Section 13, 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
respective date of filing of such documents. Any statement incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document, which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
Item 4. Description of Securities
- ------- -------------------------
The class of securities to be offered hereby is registered under Section
12(g) of the Securities Exchange Act of 1934, as amended. A description of the
Company's securities is set forth in the Form 10-SB Registration Statement
incorporated as a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel
- ------- --------------------------------------
Not Applicable.
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Item 6. Indemnification of Directors and Officers
- ------- -----------------------------------------
Section 145 of the General Corporation Law of Delaware, under which
jurisdiction the Company is incorporated, empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. The corporation may indemnify
against expenses (including attorneys' fees) and, other than in respect of an
action by or in the right of the corporation, against judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in the manner he or she reasonably believed to be in or non-opposed to the
best interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the right of the corporation, no
indemnification of expenses may be made in respect to any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
the action was brought shall determine that, despite the adjudication of
liability, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 of the General
Corporation Law of Delaware further provides that to the extent a director,
officer, employee or agent of the corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
The Company's By-Laws provide "To the fullest extent permitted by the
Delaware General Corporation Law a director of this corporation shall not be
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director."
Item 7. Exemption from Registration Claimed
- ------- -----------------------------------
Inasmuch as the Consultants who received the Shares of the Company was
knowledgeable, sophisticated and had access to comprehensive information
relevant to the Company, such transactions were undertaken in reliance on the
exemption from registration provided by Section 4(2) of the Act. As a condition
precedent to such grant, the Consultants were required to express an investment
intent and consent to the imprinting of a restrictive legend on each stock
certificate to be received from the Company except upon sale of the shares of
Common Stock pursuant to a registration statement.
15
<PAGE>
Item 8. Exhibits
- ------- --------
Exhibit Description
- ------- -----------
(4)(a) Management Consulting Agreement with Corp-Link Corporation
(4)(B) Consulting and Acquisition Management Agreement with Hong Kong
Trading Ltd.
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the
issuance of Shares of pursuant to the above Consulting Agreements
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included in the
opinion filed as exhibit (5) hereto
(23.2) Consent of independent certified public accountants
Item 9. Undertakings
- ------- ------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(b) That, for the purposes of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
16
<PAGE>
(3) Insofar as indemnification for liabilities arising under the Act may
be permitted to Directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a Director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
Director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale and the State of Florida, on the
11th day of August, 1997.
PRENTICE CAPITAL, INC.
By: /s/ Lee J. Unger
----------------------------------
Lee J. Unger, President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Lee J. Unger President and
- ---------------- Sole Director, August 11, 1997
Lee J. Unger Principal Executive,
Financial and
Accounting Officer
18
================================================================================
Management Consulting Agreement
with
Corp-Link Corporation
================================================================================
March 10, 1997
Lee J. Unger
Prentice Capital, Inc.
2898 University Dr.
Suite 70
Coral Springs, FL 33065
Re: Management Consulting Agreement
-------------------------------
Dear Mr. Unger
Formalizing our earlier discussions, this is to acknowledge and confirm
the terms of our Management Consulting Agreement ("Consulting Agreement") as
Follows:
1. PRENTICE CAPITAL, INC.. (the "Company") hereby engages Corp-Link
Corporation (Corp-Link) and Corp-Link hereby agrees to render services to the
Company as a management consultant, strategic planner and advisor.
2. DUTIES. During the term of this agreement Corp-Link shall provide
advice to, undertake for and consult with the Company concerning management,
marketing, consulting, strategic planning, corporate organization and structure,
financial matters in connection with the operation of the business of the
Company, expansion of services, stockholder relations, and shall review and
advise the Company regarding its overall progress, needs and condition.
Corp-Link agrees to provide on a Timely basis the following enumerated services
plus additional services contemplated thereby:
(a) The implementation of short range and long term strategic
planning fully develop and enhance the Company's assets, resources, products and
services;
(b) The implementation of a marketing program to assist the
Company in broadening the markets for its business and services and promote the
image of the Company and its business and services;
(c) Assist the Company in the monitoring of services provided by
the Company's advertising firm, public relations firm and other professionals to
be employed by the Company;
<PAGE>
(d) Advise the Company relative to the continued development of a
customer relations program and to stimulate interest in the Company by
institutional investors and other members of the financial community;
(e) Advise the Company relative to the recruitment and employment
of key executives consistent with the expansion of operations of the Company;
(f) Advise and recommend to the Company additional services
relating to the present business and services provided by the Company as well as
new products and services that may be provided by the Company.
3. TERM. The term of this consulting agreement shall be for a 12-month
period commencing when the Company completes it's reverse merger.
4. COMPENSATION. As compensation for its services hereunder, Corp-Link
shall receive 500,000 shares of Prentice Capital, Inc. free trading common stock
via an S.8 registration. Corp-Link shall be granted 670,000 options of the
company's common stock exercisable at .25(cent) per share to be registered via
an S.8 registration.
5. EXPENSES. Corp-Link shall be responsible for all expenses it may
incur in performing services under this Consulting Agreement.
6. CONFIDENTIALITY. Corp-Link will not disclose to any other person,
firm of corporation, nor use for its own benefit, during or after the term of
this Consulting Agreement, any trade secrets or other information designated as
confidential by the Company which is acquired by Corp-Link in the course of its
performing services hereunder. (A trade secret is information not generally
known to the trade which gives the Company an advantage over its competitors.
Trade secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning the filing or pendency of
patent applications,) Any financial advice rendered by Corp-Link pursuant to
this Consulting Agreement may not be disclosed publicly in any manner without
the prior written approval of The Company.
7. INDEMNIFICATION. The Company agrees to indemnify and hold Corp-Link
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorney's fees (collectively the
"Liabilities")joint and several, arising out of the performance of this
Consulting Agreement, whether or not Corp-Link is a party to such dispute. This
indemnity shall not apply, however, and Corp-Link indemnify and hold the
Company, its affiliates, control persons, officers, employees and agents
harmless from and against, all Liabilities, where a court of competent
jurisdiction has made a final determination
<PAGE>
that Corp-Link engaged in gross recklessness and willful misconduct in the
performance of its services hereunder which gave rise to the losses, claim,
damage, liability cost expense sought to be recovered hereunder (but pending any
such final determination, the indemnification and reimbursement provision of
this Consulting Agreement shall apply and the Company shall perform its
obligations hereunder to reimburse Cow-Link for its expenses.) The provisions of
this paragraph 7 shall survive the termination and expiration of this Consulting
Agreement.
8. INDEPENDENT CONTRACTOR. Corp-Link and the Company hereby acknowledge
that Corp-Link is an independent contractor. Corp-Link shall not hold itself out
as, nor shall it take any action from which others might infer, that it is an
agent of or a joint venturer of the Company.
9. MISCELLANEOUS. This Consulting Agreement sets forth the entire
understanding of the patties relating to the subject matter hereof, and
supersedes and cancels any prior communications, understandings and agreements
between the parties. This Consulting Agreement cannot be modified or changed,
nor can any of its provisions be waived, except by written agreement signed by
all parties. This Consulting Agreement shall be governed by the laws of the
State of Florida. In the event of any dispute as to the terms of this Consulting
Agreement, shall be settled through arbitration before the American Arbitration
Association sitting in Ft. Lauderdale, FL with the final decision being binding
on both parties.
Please confirm that the foregoing correctly sets forth our
understanding by signing this letter where provided and returning it to us at
your earliest convenience.
Very truly yours,
Corp-Link Corporation
BY: /s/ Matthew P. Dwyer
----------------------------------
Matthew P. Dwyer
President
Accepted and Agreed to as of
the 10th day of March, 1997
Prentice Capital, Inc.
By: /s/ Lee J. Unger
----------------------
Name: Lee J. Unger
Title: President
================================================================================
Consulting and Acquisition Agreement
with Hong Kong Trading Ltd.
================================================================================
CONSULTING AND ACQUISITION MANAGEMENT AGREEMENT
-----------------------------------------------
Consulting and Acquisition Management Agreement ("Agreement") made this
4th day of August 1997 by and between Prentice Capital, Inc. a Delaware
corporation ("Prentice"), and Hong Kong Trading Ltd. a BWI Corporation the
("Consultant").
W I T N E S S E T H :
- - - - - - - - - -
A. Prentice desires to engage the services of Consultant in order to
identify, evaluate and structure mergers, consolidations acquisitions, joint
ventures and strategic alliances (hereafter collectively referred to as
"Acquisitions"); and the request of Prentice to manage any such Acquisitions;
and
B. Consultant is desirous of performing such services on behalf of
Prentice.
C. NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, the parties hereto agree as follows:
1. Consulting Services.
1.1 Upon the terms and subject to the conditions contained in this
Agreement, Consultant hereby agrees that he shall, during the term of this
Agreement, devote sufficient time and effort on behalf of Prentice (and whether
or not Prentice is the survivor thereof) (i) in the identification, evaluation,
structuring, negotiating and closing of business acquisitions (whether in the
form of asset purchases, stock purchases, mergers, consolidations, joint
ventures, strategic alliances or otherwise) for the account of Prentice upon
such terms and conditions as are acceptable to Prentice and (ii) if requested by
Prentice, managing , operating or consulting with respect to each such
consummated Acquisition. Notwithstanding anything to the contrary in the
preceding sentence, each Acquisition proposed by Consultant to be made by
Prentice shall be subject to the approval of Prentice which approval may be
withheld or delayed for any reason in Prentice's sole and absolute discretion.
Such proposed Acquisitions my constitute leveraged buy-outs and need not
initially produce positive cash flow.
1.2 Following any consummated Acquisition of a Target Company or
Deal (as hereinafter defined) by Prentice or an Affiliate (as hereinafter
defined), at the written request of Prentice , Consultant shall be responsible,
subject to the direction of Prentices' Board of Directors, for the management
and day-to-day operations of such Acquisition. Consultant shall have the right
to recommend the chief executive officer of each acquisition subject to the sole
and absolute discretion of Prentices' Board of Directors.
1.3 Consultant shall , in writing, submit an acquisition proposal to
Prentice with regard to each Acquisition which is proposed to be consummated (a
"Target Company or Deal"). Each such proposal shall include the business and
marketing plan and financial pro-forma with respect to such proposed
Acquisition. During the term of this Agreement, Consultant shall, at least
quarter-annually, report to Prentice on his activities regarding the targeting
of Acquisitions, the status of Acquisitions in progress and a summary of the
activities and financial results of Acquisitions made.
PAGE 1
<PAGE>
2. Terms. The Agreement shall be for a term of one (1) year from the
execution date by both parties to this Agreement.
3. Compensation. Prentice shall pay the following compensation to
Consultant in consideration for the services to be rendered hereunder:
3.1 There shall be issued to Consultant an aggregate of 300,000
shares of Common Stock, $.03 par value (the "Shares"), of Prentice in
consideration for his services payable within two (2) weeks after the execution
date by both parties to this Agreement.
4. Expenses. Unless otherwise approved by Prentice, Consultant shall
bear all expenses incurred by it prior to written acceptance by Prentice of a
proposal by consultant with respect to the Acquisition of a Target Company or
Deal on behalf of Prentice. Thereafter, subject to Prentices' prior written
approval, all out-of-pocket expenses of Consultant, legal, accounting and other
fees to third parties in connection with or in respect of such proposed
Acquisition shall be paid by Prentice promptly when due. After Prentice approves
in writing a proposed Acquisition, but prior to consummation of such
Acquisition, Consultant, subject to Prentices' approval, may select providers of
professional services in respect of such Acquisition. In any event, Prentice
shall always have the right to require that such providers of professional
services fully cooperate with providers of professional services selected by
Prentice. After such Acquisition shall have been consummated, Prentice shall
have the sole right to designate providers of professional services in
connection with or in respect of such Acquisition, and similarly, Prentice shall
have the sole right to remove, replace or supplement providers of professional
services, including, but not limited to , attorneys, accountants, auditors and
appraisers.
5. Breach of Contract. The sole remedy of Prentice in respect of any
material breach of this Agreement by Consultant shall be to terminate this
Agreement upon the giving of thirty (30) days prior written notice, but no such
termination shall affect the fee payable pursuant to subparagraph 3.1 hereof.
6. Purchase of Shares. The Shares shall be issued solely in exchange for
the contemplated services and appropriate investment restrictions shall be noted
against the Shares. Consultant agrees to acquire the Shares for investment and
will not dispose of the Shares in the absence of registration thereof or
applicable exemption under the Securities Act of 1933.
7. Registration. The Company agrees to provide Consultant with
registration rights at the Company's cost and expense and include the Shares in
a registration statement to be filed by the Company with the Securities and
Exchange Commission within the proximate future.
8. Officers and Directors. Consultant, upon the request of Prentice,
may serve as officer and/or director of any Acquisition. provided, however, that
the Consultant shall be entitled to be covered by appropriate directors and
officers liability insurance and indemnification by Prentice in amounts and on
terms acceptable to Consultant in his sole discretion.
9. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
PAGE 2
<PAGE>
10. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies which any party may otherwise have at law or in equity.
11. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida applicable to agreements made
and to be performed entirely within such State.
12. No Assignment. This Agreement is not assignable by Consultant except
to any entity in which a majority in interest is owned by Consultant, but shall
be assignable by Prentice solely upon consent of Consultant.
13. Headings. The headings in this Agreement are for reference purpose
only and shall not in any way affect the meaning of interpretation of this
Agreement.
14. Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
16. Other Activities. Nothing contained herein shall prevent Consultant
from acquiring or participating in the acquisition of a Target Company proposed
by Consultant to be acquired by Prentice where such proposal is rejected by
Prentice or fails in its consummation for any reason (unless such failure of
consummation is caused by the bad faith of Consultant). The foregoing shall be
subject to such other activity not interfering with the performance by
Consultant of the services to be rendered to Prentice under this Agreement and
that such Acquisition is acquired at a price and on terms and conditions no more
favorable than those offered to Prentice.
17. Disclaimer. Consultant acknowledges that he has made a full and
independent inquiry regarding Prentice and has been afforded access to such
Prentice materials as he requested and that, in entering into this Agreement, he
has not in any manner directly or indirectly relied on any warranty or
representation by Prentice, its officers, directors, agents, legal counsel or
accountants concerning Prentice and/or its stock as to matters past, present or
future.
PAGE 3
<PAGE>
18. Notices. All notices to be given hereunder shall be in writing, with
fax notices being an acceptable substitute for mail and/or and delivery to:
(i) Hong Kong Trading, Ltd.
Raymond Martin, Agent
P.O. Box 70
Roaltown, Tortula, B.W.I.
(ii) Prentice Capital, Inc.
Lee J. Unger, President
2898 University Drive Suite 43
Coral Springs, Florida 33065
IN WITNESS WHEREOF, the parties have executed this Agreement on
this 4th day of August, 1997.
Prentice Capital, Inc.
By: /s/ Lee J. Unger
------------------------
Lee J. Unger, President
Hong Kong Trading, Ltd.
By: /s/ Raymond Martin
------------------------
Raymond Martin, Agent
PAGE 4
================================================================================
Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the
relating to the issuance of Shares
pursuant to the above Consulting Agreements
================================================================================
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
ATTORNEYS AT LAW
TELEPHONE (954) 763-1200
FACSIMILE (954) 766-7800
August 11, 1997
Prentice Capital, Inc.
2898 University Drive, Suite 43
Coral Springs, Florida 33065
Re: Registration Statement on Form S-8 Prentice Capital, Inc. (the
"Company"), 1,470,000 Shares of Common Stock
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission with respect to the registration by the
Company of 1,470,000 shares of Common Stock, par value $.03 per share (the
"Common Stock") to be sold by the Selling Security Holders designated in the
Registration Statement. The shares of Common Stock to be sold include up to
670,000 shares of Common Stock issuable upon exercise of Common Stock Purchase
Warrants (the "Warrants").
In our capacity as counsel to the Company, we have examined the original,
certified, conformed, photostat or other copies of the Company's Articles of
Incorporation, By-Laws, the Consulting Agreements and corporate minutes provided
to us by the Company. In all such examinations, we have assumed the genuineness
of all signatures on original documents, and the conformity to originals or
certified documents of all copies submitted to us as conformed, photostat or
other copies. In passing upon certain corporate records and documents of the
Company, we have necessarily assumed the correctness and completeness of the
statements made or included therein by the Company, and we express no opinion
thereon.
Based upon and in reliance of the foregoing, we are of the opinion that
the Common Stock previously issued and to be issued upon exercise of the
Options, when issued in accordance with the terms of the Options, will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration Statement
on Form S-8 to be filed with the Commission.
Very truly yours,
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
JMS/lgk
================================================================================
Consent of independent certified public accountants
================================================================================
GUIDA & JIMENEZ, P.A.
Certified Public Accountants
1308 West Sligh Avenue
Tampa, Florida 33604
August 6, 1997
Securities and Exchange Commission Washington, DC 20549
Re: Prentice Capital, Inc.
Form S-8
Gentlemen:
In connection with the filing of Form S-8, Registration Statement under The
Securities Act of 1933, by Prentice Capital, Inc. and subsidiaries, we hereby
consent to the user of our name as independent auditors in our report dated July
3, 1997 accompanying the audited financial statements of Prentice Capital,Inc.
as of December 31, 1996 and 1995 for the years then ended.
Very truly yours,
Guida & Jimenez, P.A.
