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As filed with the Securities and Exchange Commission on November 22, 1999.
File No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PEACHTREE FIBEROPTICS, INC.
(Exact name of issuer as specified in its charter)
Delaware 58-1974423
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3300 PGA Boulevard, Suite 810
Palm Beach Gardens, Florida 33410
(Address of principal executive offices) (Zip Code)
CONSULTING AGREEMENT WITH STEPHEN KRAUSE
AGREEMENT WITH
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
AND
AGREEMENT WITH SIDNEY LEVINE
(Full title of the plan)
--------------
Leonard J. Sokolow
3300 PGA Boulevard, Suite 810
Palm Beach Gardens, Florida 33410
Telephone No.: (305) 374-0282
(Name and address of agent for service)
COPY TO:
Charles B. Pearlman, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
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<TABLE>
<CAPTION>
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(1) share(1) price(1) fee (1)
=================================================================================================================
<S> <C> <C> <C> <C>
Common Stock 778,666
($.01 par value) shares $4.00 $3,114,664 $866
=================================================================================================================
</TABLE>
(1) The amount of the registration fee is being calculated based on the
average bid and asked price of Peachtree's common stock on the OTC
Bulletin Board on November 9, 1999.
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PROSPECTUS
PEACHTREE FIBEROPTICS, INC.
778,666 SHARES OF COMMON STOCK
This Prospectus is part of a registration statement which registers a
total of 778,666 shares of Common Stock of Peachtree FiberOptics, Inc. which are
being issued to consultants to Peachtree under written consulting agreements and
to a director of Peachtree as a result of a contract with the director.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THE 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 November 22, 1999.
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AVAILABLE INFORMATION
Peachtree is subject to the informational requirements of the
Securities Exchange Act of 1934, and files reports, proxy statements and other
information with the Securities and Exchange 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 and at the
Commission's Regional Offices in New York (7 World Trade Center, 13th Floor, New
York, New York 10048) and Chicago (Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661). Peachtree is an electronic filer and the
Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of the web site is http://www.sec.gov.
Peachtree has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, with
respect to the resale of up to an aggregate of up to 778,666 shares of our
Common Stock, issued to Steven Krause, James Schneider and Sidney Levine. This
Prospectus, which is Part I of the registration statement, omits certain
information contained in the registration statement. For further information
with respect to Peachtree and the 778,666 shares of the Common Stock offered by
this prospectus, please refer to the registration statement and the exhibits to
the registration statement. 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 Peachtree with the Securities and
Exchange Commission are incorporated by reference and made a part hereof:
1. Peachtree's Annual Report on Form 10-KSB for the year ended
December 31, 1998.
2. Peachtree's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1999.
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3. Peachtree's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1999;
4. Peachtree's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1999;
5. All reports and documents filed by Peachtree under 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 here in any other subsequently filed
document, which also is or is considered to be incorporated by reference
modifies or supersedes this statement. Any statement modified or superseded
shall not be considered except as so modified or superseded, to be a part of
this prospectus.
Peachtree 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 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, Peachtree
FiberOptics, Inc., 3300 PGA Boulevard, Suite 810, Palm Beach Gardens, Florida
33410.
We were advised by Messrs. Levine, Schneider and Krause that they may
sell all or a portion of their shares of common stock 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 we will not receive any
proceeds from those sales.
No person has been authorized by us to give any information or to make
any representation other than as contained in this prospectus, and if given or
made, the information or representation must not be relied upon as having been
authorized by us. Neither the delivery of this prospectus nor any distribution
of the shares issuable under the terms of the consulting and other agreements
shall, under any circumstances, create any implication that there has been no
change in our affairs since the date of this prospectus.
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THE COMPANY
Peachtree is a development stage enterprise and was incorporated in the
State of Delaware in February 1992, primarily to engage in the production and
sale of plastic optical fiber. In connection with its formation, Peachtree
acquired from Peachtree Technologies, Inc. the rights to certain technology for
a new manufacturing process to produce plastic optical fiber. We also entered
into an agreement with Fiberoptic Machinery Company, Inc. to sell under our name
certain custom designed machinery produced by them to manufacture wire, cable
and glass fiber. Fiberoptic was a small machinery company incorporated in the
State of Georgia at the time Peachtree was incorporated. Fiberoptic acquired the
remaining assets and debt of Peachtree and Fiberoptic's continued survival was
solely dependent on the success of Peachtree's efforts to sell custom machinery.
Our plastic optical fiber development efforts were primarily focused on
meeting specifications set forth by Rutgers University FiberOptics Department
for "Illumination Plastic Optical Fiber". In the second quarter of 1993, we
believed our plastic optical fiber met these specifications and Peachtree's
illumination plastic optical fiber was evaluated and accepted by a sign
manufacturer. During the third quarter of 1993, the sign manufacturer informed
us that the plastic optical fiber previously accepted no longer met required
specifications. We then determined our plastic optical fiber was not comparable
to plastic optical fiber produced by other manufacturers. At that time, we did
no possess funding needed to enhance or modify our existing plastic optical
fiber production system to met required specifications.
Due to inadequate capital resources, the inability to raise additional
capital, technical difficulties existing with our initial plastic optical fiber
production system, certain lawsuits filed against us, and certain claims
asserting that we were liable for the debts of FiberOptics, in October 1993, we
granted any officer of J.W. Charles Securities, Inc. and Corporate Securities
Group, Inc., our initial public offering managing underwriters, a limited
power-of-attorney to negotiate and execute an agreement with Genesis Partners,
Inc. to act as the exclusive manager of all of our business interests.
On October 27, 1993, Peachtree ceased all operations and subsequently
sold certain assets relating to our plastic optical fiber operations. On
February 2, 1994, we entered into an asset acquisition agreement for the sale of
our plastic optical fiber production system, certain equipment and inventory for
$200,000. In connection with this sale, we licensed our proprietary technology.
After several years of attempting to locate suitable merger or
acquisition candidates, as of November 8, 1999 we entered into a share exchange
agreement with VFinance Holdings, Inc., a Florida corporation, and Union
Atlantic, L.C., a Florida limited liability company. We received all of the
capital stock of VFinance and Union Atlantic in exchange for a total of
6,955,000 shares of common stock. VFinance through VFinance.com, is one of the
Internet's significant business development vertical portals or "vortal"
attracting approximately 1.6 million "hits" per month representing over 50,000
monthly visitors from at least 50 countries. VFinance.com is a "new-media"
enterprise focused on providing business development tools,
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information, products and services to assist entrepreneurs and executive of
small and medium sized enterprises to organize and grow their business. The site
is typically listed by search engines in the top five for relevant content. The
site has over 350 links to related sites such as Microsoft Network, Dow Jones,
and SNAP to name a few. The combination of relevant content and ease of use has
resulted in the site having over 135,000 user sessions each month growing on a
monthly rate of over 10% with the average user session length in excess of seven
minutes. With VFinance, Peachtree's goal is to build a leading "business
development" vertical portal and be positioned as a "new-media" enterprise
leveraging the "convergence" of digital information to execute its business
strategy.
Union Atlantic LC is a four-year old management consulting firm that is
a pioneer in "strategic outsourcing". Strategic outsourcing is a methodology by
which public and private small to medium sized enterprises can cost effectively
access the same management and financial resources that large companies
typically have in-house, for the purpose of expediting corporate development.
The firm's focus is on technology.
All three of these companies have in common certain members of
management and certain common ownership of equity.
SERVICES AGREEMENTS
As of August 27, 1999, Peachtree entered into a one (1) year consulting
agreement with Stephen Krause in consideration of Krause's services to Peachtree
since 1998 and based on Peachtree's desire to continue to use Krause's skills in
connection with the pending acquisition of VFinance.com and Union Atlantic LC.
Krause will continue to undertake marketing, administrative and other executive
duties to advance the corporate goals and interest of the Company, VFinance and
Union Atlantic. Krause will also continue to develop marketing programs for the
provision of their services and financial products and formulate distribution
programs for their services and products. Krause will also continue to assist in
the development of their administrative infrastructure, recruitment of key
personnel and the arrangement of professional consultants to Peachtree, VFinance
and Union Atlantic. Krause has spent and it is anticipated that Krause will
continue to spend at least 40 hours per month with respect to these activities.
In recognition and consideration for these services provided to Peachtree prior
to August 27, 1999, Peachtree has agreed to pay 345,000 unregistered shares of
Peachtree's common stock to Krause. Furthermore in consideration for his
services rendered after August 27, 1999, Krause agrees to accept the M&A Fees
earned pursuant to the August 16, 1999 Consulting Agreement. Peachtree
recognized $365,700 in compensation expense with respect to the payment of these
shares to Mr. Krause.
On July 16, 1999, Peachtree retained the services of James Schneider
and his firm, Atlas, Pearlman, Trop & Borkson, P.A. to provide various corporate
and commercial services relating to Peachtree. Under the terms of this
engagement, Peachtree retained services of Mr. Schneider and his firm to provide
various corporate, transactional, stockholder and regulatory compliance services
relative to its operations. This included, and will include, among other
matters, the drafting of commercial agreements, acquisition agreements, proxy
materials and the preparation of necessary reporting forms filed with the
Securities and Exchange Commission. In consideration of the services,
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Mr. Schneider is to be issued 50,000 shares of Peachtree's common stock. The
arrangement does not include services relevant to any financing to be undertaken
by Peachtree, the filing of any required registration statements in order to
complete a financing, or for services rendered after September 30, 1999, which
will involve the payment of other consideration or compensation which is not
included in the compensation covered by this prospectus.
Sidney Levine has served as a director of Peachtree since October 1993,
under an arrangement in which compensation would be determined based on his
overall contributions to Peachtree. This agreement was to be in place until
Peachtree completed an acquisition which would provide it with operational
status. In connection with the acquisition of VFinance and Union Atlantic,
Peachtree and Mr. Levine have agreed that fair compensation for him during the
period of his directorship is 343,666 shares of common stock of Peachtree. In
the event that Mr. Levine continues as a director of Peachtree, separate
compensation arrangements will be made available to him as agreed to by the
parties.
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 Peachtree, as well as certain other persons or
parties who may be deemed to be "affiliates" of Peachtree 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 otherthis
offering. 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 Peachtree he would generally be required to pay to
Peachtree any "profits" resulting from the sale of the stock.
SALES BY SELLING SECURITY HOLDERS
The following table sets forth the amount of shares of our common stock
held directly or indirectly by the selling security holders giving effect to
the above transactions, the amount of our common stock to be owned by each
following sale of such shares of common stock and the percentage of shares of
common stock to be owned by each selling security holder following completion of
this offering.
<TABLE>
<CAPTION>
Percentage to
Shares to be
to be Owned
Name of Selling Number of Shares to Owned After After
Security Holder Shares Owned be Offered Offering Offering
- --------------- ------------ ---------- -------- --------
<S> <C> <C> <C> <C>
Stephen Krause 385,000 345,000 40,000 0.4%
James Schneider 50,000 50,000 -0- -0-
Sidney Levine 343,666 343,666 -0- -0-
</TABLE>
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DESCRIPTION OF SECURITIES
Peachtree is currently authorized to issue up to 20,000,000 shares of
Common Stock, $.01 par value per share, of which 546,334 shares were outstanding
as of October 31, 1999. On April 28, 1999, we implemented a 1:97.44092 reverse
stock split of our outstanding common stock. Peachtree has issued 6,955,000
shares of common stock to the security holders of VFinance and Union Atlantic.
COMMON STOCK
Subject to the dividend rights of the holders of our preferred stock,
if any, holders of our 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. Upon liquidation, dissolution or winding up and
after payment to creditors and holders of preferred stock that may be
outstanding, our assets will be divided pro rata on a per share basis among the
holders of the common stock.
Each share of our common stock entitles the holders thereof to one
vote. Holders of our 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 any directors. Our by-laws require that only a majority of
the issued and outstanding shares of common stock need be represented to
constitute a quorum and to transact business at a stockholders' meeting. Our
common stock has no preemptive, subscription or conversion rights and is not
redeemable.
OVER-THE-COUNTER MARKET
Peachtree's common stock is traded on the OTC Bulletin Board of the
National Association of Securities Dealers, Inc. under the symbol "VFIN."
TRANSFER AGENT
The transfer agent for the shares of common stock is North American
Transfer Co., 147 West Merrick Road, Freeport, New York 11520.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for Peachtree by Atlas, Pearlman, Trop & Borkson,
P.A., Special Counsel for Peachtree, Fort Lauderdale, Florida. Mr. James
Schneider of the firm of Atlas, Pearlman, Trop & Borkson, P.A. owns 50,000
Shares of common stock of Peachtree.
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INDEMNIFICATION
Section 145 of the General Corporation Law of Delaware, under which
jurisdiction Peachtree 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.
Article XII of the Company's By-Laws provides as follows:
ARTICLE XII
Indemnification of Directors, Officers and Employees
12.1 ACTION OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. Subject
to Section 12.3 hereof, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suite or proceeding, whether civil, criminal, administrative
or investigative, and whether external or internal to the Corporation (other
than a judicial action or suite brought by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director of officer of another corporation, partnership, joint venture, trust or
other enterprise (all such persons being referred to hereafter as an "agent"),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suite or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suite or
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proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
wit respect to any criminal action or proceeding, that he had reasonably cause
to believe that his conduct was unlawful.
12.2 ACTION BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section
12.3 hereof, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
judicial action or suit brought by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that he is or was an Agent against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, expect that no indemnification shall be made
in respect of 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 such action or suite was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity of such expenses which the Court of Chancery or other such
court shall deem proper.
12.3 DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification
under Sections 12.1 or 12.2 hereof (unless ordered by a court) shall be made by
the Corporation unless a determination is reasonably and promptly made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who are or were not parties to such action, suite or proceeding, or (ii) if such
a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that such person acted in bad faith and in a manner
that such person did not believe to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe that his conduct was
unlawful.
12.4 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article XII, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal or
an action without prejudice or the settlement of an action without admission of
liability, in defense of any proceeding or in defense of any claim, issue or
matter therein, such Agent shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
12.5 ADVANCES OF EXPENSES. Except as limited by Section 12.6 hereof,
expenses incurred in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount in
the event that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. However, no advance shall be made by the
Corporation
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if a determination is reasonably and promptly made by the Board of Directors by
a majority vote of a quorum of disinterested directors, or (if such a quorum is
not obtainable or, even if obtainable, a quorum of disinterested directors so
directs) by independent legal counsel in a written opinion, that, based upon the
facts known to the Board of Directors or counsel at the time such determination
is made, such person acted in bad faith and in a manner that such person did not
believe to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal proceeding, that such person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Board of Directors or independent legal
counsel reasonably determines that such person deliberately breached his duty to
the Corporation or its stockholders.
12.6 RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION. Any indemnification under Sections 12.1, 12.2, and 12.4 hereof, or
advance under Section 12.5 hereof, shall be made promptly and in any event
within 45 days, upon the written request of the Agent, unless with respect to
applications under Sections 12.2, 12.3, or 12.5 hereof, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of a
quorum of disinterested directors that such Agent acted in a manner set forth in
such Sections as to justify the Corporation's not indemnifying or making an
advance to the Agent. In the event no quorum of disinterested directors is
obtainable, the Board of Directors shall promptly direct that independent legal
counsel shall decide whether the Agent acted in the manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. The right to indemnification or advances as granted by this
Article XII shall be enforceable by the Agent in any court of competent
jurisdiction if the Board of Directors or independent legal counsel denies the
claim, in whole or in part, or if no disposition of such claim is made within 45
days. The Agent's expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such proceeding shall
also be indemnified by the Corporation.
12.7 OTHER RIGHTS AND REMEDIES. The indemnification provided by this
Article XII shall not be deemed exclusive of any other rights to which an Agent
seeking indemnification may be entitled under any agreement, vote of
stockholders or disinterested directors, court order or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. It is the policy of the Corporation that indemnification of
Agents shall be made to the fullest extent permitted by law. All rights to
indemnification under this Article XII shall be deemed to be provided by a
contract between the Corporation and the Agent who serves in such capacity at
any time while these By-Laws and other relevant provisions of the General
Corporation Law of the State of Delaware and other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
12.8 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was an Agent against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation
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would have the power to indemnify him against such liability under the
provisions of this Article XII.
12.9 INDEMNITY FUND. Upon resolution adopted by the Board of Directors,
the Corporation may establish a trust or other designated account, grant a
security interest or use other designated account, grant a security interest or
use other means (including, without limitation, a letter of credit), to ensure
the payment of certain of its obligations arising under this Article XII and/or
agreements which may be entered into between the Corporation and its officers
and directors from time to time.
12.10 INDEMNIFICATION OF OTHER PERSONS. The provisions of this Article
XII shall not be deemed to preclude the indemnification of any person who is not
an Agent but whom the Corporation has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of Delaware or
otherwise. The Corporation may, in its sole discretion, indemnify an employee,
trustee or other agent as permitted by the General Corporation Law of the State
of Delaware. The Corporation shall indemnify an employee, trustee or other agent
where required by law.
12.11 SURVIVAL OF INDEMNIFICATION. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article XII shall continue
as to a person who has ceased to be an Agent and shall inure to the benefit of
the heirs, executors and administrators of such Agent.
12.12 SAVINGS CLAUSE. If this Article XII or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Agent against expenses (including
attorneys' fees), judgements, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether internal or external, including a grand jury
proceeding and an action or suit brought by or in the right of the Corporation,
to the full extent permitted by any applicable portion of this Article XII that
shall not have been invalidated, or by any other applicable law.
12.13 CERTAIN DEFINITIONS. For purposes of this Article XII, references
to "the Corporation" shall include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power to indemnify its directors,
officers and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article XII with respect
to such constituent corporation if its separate existence had continued;
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed a person with
respect to any employee benefit plan; and references to "serving at
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<PAGE> 14
the request of the Corporation" shall include any service as a director or
officer of the Corporation or officer with respect to any employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as refereed to in
this Article XII.
14
<PAGE> 15
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (e) below are incorporated by
reference in the registration statement. All documents subsequently filed by
Peachtree pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, 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 considered to be
incorporated by reference in the registration statement and to be part thereof
from the date of filing of such documents.
(a) Peachtree's Annual Report on Form 10-KSB for the year ended
December 31, 1998.
(b) Peachtree's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1999.
(c) Peachtree's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1999.
(d) Peachtree's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999.
(e) All reports and documents filed by Peachtree under 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 considered 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 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 considered to be incorporated by reference,
modifies or supersedes the 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
Our common stock is registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended. A description of Peachtree's securities is set
forth in the prospectus incorporated as a part of this registration statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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<PAGE> 16
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware, under which jurisdiction
Peachtree 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.
Article XII of the Company's By-Laws provides as follows:
ARTICLE XII
Indemnification of Directors, Officers and Employees
12.1 ACTION OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. Subject
to Section 12.3 hereof, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suite or proceeding, whether civil, criminal, administrative
or investigative, and whether external or internal to the Corporation (other
than a judicial action or suite brought by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director of officer of another corporation, partnership, joint venture, trust or
other enterprise (all such persons being referred to hereafter as an "agent"),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suite or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suite or
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<PAGE> 17
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
wit respect to any criminal action or proceeding, that he had reasonably cause
to believe that his conduct was unlawful.
12.2 ACTION BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section
12.3 hereof, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
judicial action or suit brought by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that he is or was an Agent against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, expect that no indemnification shall be made
in respect of 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 such action or suite was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity of such expenses which the Court of Chancery or other such
court shall deem proper.
12.3 DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification
under Sections 12.1 or 12.2 hereof (unless ordered by a court) shall be made by
the Corporation unless a determination is reasonably and promptly made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who are or were not parties to such action, suite or proceeding, or (ii) if such
a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that such person acted in bad faith and in a manner
that such person did not believe to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe that his conduct was
unlawful.
12.4 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article XII, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal or
an action without prejudice or the settlement of an action without admission of
liability, in defense of any proceeding or in defense of any claim, issue or
matter therein, such Agent shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
12.5 ADVANCES OF EXPENSES. Except as limited by Section 12.6 hereof,
expenses incurred in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount in
the event that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. However, no advance shall be made by the
Corporation
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<PAGE> 18
if a determination is reasonably and promptly made by the Board of Directors by
a majority vote of a quorum of disinterested directors, or (if such a quorum is
not obtainable or, even if obtainable, a quorum of disinterested directors so
directs) by independent legal counsel in a written opinion, that, based upon the
facts known to the Board of Directors or counsel at the time such determination
is made, such person acted in bad faith and in a manner that such person did not
believe to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal proceeding, that such person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Board of Directors or independent legal
counsel reasonably determines that such person deliberately breached his duty to
the Corporation or its stockholders.
12.6 RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION. Any indemnification under Sections 12.1, 12.2, and 12.4 hereof, or
advance under Section 12.5 hereof, shall be made promptly and in any event
within 45 days, upon the written request of the Agent, unless with respect to
applications under Sections 12.2, 12.3, or 12.5 hereof, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of a
quorum of disinterested directors that such Agent acted in a manner set forth in
such Sections as to justify the Corporation's not indemnifying or making an
advance to the Agent. In the event no quorum of disinterested directors is
obtainable, the Board of Directors shall promptly direct that independent legal
counsel shall decide whether the Agent acted in the manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. The right to indemnification or advances as granted by this
Article XII shall be enforceable by the Agent in any court of competent
jurisdiction if the Board of Directors or independent legal counsel denies the
claim, in whole or in part, or if no disposition of such claim is made within 45
days. The Agent's expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such proceeding shall
also be indemnified by the Corporation.
12.7 OTHER RIGHTS AND REMEDIES. The indemnification provided by this
Article XII shall not be deemed exclusive of any other rights to which an Agent
seeking indemnification may be entitled under any agreement, vote of
stockholders or disinterested directors, court order or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. It is the policy of the Corporation that indemnification of
Agents shall be made to the fullest extent permitted by law. All rights to
indemnification under this Article XII shall be deemed to be provided by a
contract between the Corporation and the Agent who serves in such capacity at
any time while these By-Laws and other relevant provisions of the General
Corporation Law of the State of Delaware and other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
12.8 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was an Agent against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation
II-4
<PAGE> 19
would have the power to indemnify him against such liability under the
provisions of this Article XII.
12.9 INDEMNITY FUND. Upon resolution adopted by the Board of Directors,
the Corporation may establish a trust or other designated account, grant a
security interest or use other designated account, grant a security interest or
use other means (including, without limitation, a letter of credit), to ensure
the payment of certain of its obligations arising under this Article XII and/or
agreements which may be entered into between the Corporation and its officers
and directors from time to time.
12.10 INDEMNIFICATION OF OTHER PERSONS. The provisions of this Article
XII shall not be deemed to preclude the indemnification of any person who is not
an Agent but whom the Corporation has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of Delaware or
otherwise. The Corporation may, in its sole discretion, indemnify an employee,
trustee or other agent as permitted by the General Corporation Law of the State
of Delaware. The Corporation shall indemnify an employee, trustee or other agent
where required by law.
12.11 SURVIVAL OF INDEMNIFICATION. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article XII shall continue
as to a person who has ceased to be an Agent and shall inure to the benefit of
the heirs, executors and administrators of such Agent.
12.12 SAVINGS CLAUSE. If this Article XII or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Agent against expenses (including
attorneys' fees), judgements, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether internal or external, including a grand jury
proceeding and an action or suit brought by or in the right of the Corporation,
to the full extent permitted by any applicable portion of this Article XII that
shall not have been invalidated, or by any other applicable law.
12.13 CERTAIN DEFINITIONS. For purposes of this Article XII, references
to "the Corporation" shall include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power to indemnify its directors,
officers and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article XII with respect
to such constituent corporation if its separate existence had continued;
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed a person with
respect to any employee benefit plan; and references to "serving at
II-5
<PAGE> 20
the request of the Corporation" shall include any service as a director or
officer of the Corporation or officer with respect to any employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as refereed to in
this Article XII.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inasmuch as the consultants and director who received the 778,666
shares of Peachtree were knowledgeable, sophisticated and had access to
comprehensive information relevant to Peachtree, these transactions were
undertaken in reliance on the exemption from registration provided by Section
4(2) of the Act. As a condition precedent to the grants, each of the consultants
and director was required to express an investment intent and consent to the
imprinting of a restrictive legend on each stock certificate to be received from
Peachtree except upon sale of the shares of common stock under to a registration
statement.
ITEM 8. EXHIBITS
Exhibit Description
- ------- -----------
(4)(a) Consulting Agreement with Stephen Krause
(4)(b) Consulting Agreement with Atlas, Pearlman, Trop &
Borkson, P.A.
(4)(c) Agreement with Sidney Levine
(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 Ernst & Young LLP
ITEM 9. UNDERTAKINGS
(1) Peachtree 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;
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<PAGE> 21
(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 hereby undertakes that, for purposes of determining
any liability under the Act, each filing of Peachtree'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.
(3) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of Peachtree
pursuant to the foregoing provisions, or otherwise, Peachtree 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 Peachtree of expenses incurred or
paid by a director, officer or controlling person of Peachtree 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,
Peachtree 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.
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<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Peachtree 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, in the City of Miami
and the State of Florida, on the 22nd of November, 1999.
PEACHTREE FIBEROPTICS, INC.
By: /s/ Leonard J. Sokolow
----------------------------------
Leonard J. Sokolow, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Leonard J. Sokolow President and
- ------------------------------------- Principal Executive Officer November 22, 1999
Leonard J. Sokolow Financial Officer and
Accounting Officer
/s/ Sidney Levine Director November 22, 1999
- -------------------------------------
Sidney Levine
</TABLE>
II-8
<PAGE> 1
Exhibit 4(a)
CONSULTING AGREEMENT
Consulting Agreement ("Agreement") made as of the 27th day of August,
1999 by and between Peachtree FiberOptics, Inc., a Delaware corporation
("Peachtree"), and STEPHEN KRAUSE ("Krause" or "Consultant").
WITNESSETH:
1. Krause is party to a Consulting and Acquisition Management Agreement dated
August 16, 1999 pursuant to which Krause and another individual were to
evaluate and structure various acquisition transactions and, at the request
of Peachtree, manage any such acquisitions;
2. Peachtree has identified certain projects and acquisitions which it wishes
to undertake with the continued assistance of Krause and to continue to use
the services of Krause in connection with the management of the operations
of Peachtree and the companies to be acquired; and
3. Krause is willing and desirous of continuing to perform such services on
behalf of Peachtree.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties hereto agree as follows:
1. MANAGEMENT SERVICES. Peachtree has entered into contracts for the
acquisition of VFinance Holdings, Inc. ("VFinance") and Union Atlantic, L.C.,
("Union Atlantic"). Since 1998, Peachtree has utilized and desires to continue
to make use of Krause's skills in connection with the undertaking of various
marketing, administrative and other executive capacities in order to advance the
corporate goals and interests of VFinance, Union Atlantic and Peachtree. In
particular, since 1998, Krause has worked and will continue to work with these
companies in developing their marketing program for the provision of their
services and financial products and will assist these companies in formulating a
distribution program for their products and services. In addition, since 1998,
Krause has worked and will continue to work with Vfinance, Union Atlantic and
Peachtree in developing their administrative infrastructure, and will interface
with various organizations outside these companies relative to their marketing
program, the recruitment of key personnel and the arrangement for services by
professional consultants to Peachtree, VFinance and Union Atlantic.
2. TIME WORKED FOR PEACHTREE. While no set hours or days had been
established during which Krause has rendered and will continue to render his
services on behalf of VFinance and Union Atlantic, it is anticipated that he has
spent and will continue to spend at least 40 hours per month assisting
Peachtree, VFinance and Union Atlantic or whatever additional time will be
necessary for purposes of accomplishing their corporate objectives.
3. TERM. This Agreement shall be for a term of one year from the date
hereof.
4. COMPENSATION. In consideration for Krause's services rendered to
Peachtree prior to the date of this Agreement, Peachtree shall pay to Krause as
his sole compensation for such services 345,000 shares of its common stock to be
issued not later than November 25, 1999. For services under this Agreement
rendered by Krause after the date of this Agreement, Krause agrees to accept as
his sole consideration the fees earned pursuant to Section 3.2 of the Consulting
and Acquisition Management Agreement dated August 16, 1999 The fees payable
pursuant to this section shall be in lieu of any other compensation to which
Krause may otherwise be entitled for acting as an officer, director, consultant
or any like capacity with VFinance or Union Atlantic.
5. EXPENSES. Unless otherwise approved by Peachtree, Krause shall bear all
expenses incurred by him prior to written acceptance by Peachtree.
6. PURCHASE OF SHARES. The Shares shall be issued solely in exchange for
the services and appropriate investment restrictions shall be noted against the
Shares. Krause 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.
<PAGE> 2
7. REGISTRATION. Peachtree agrees to provide Krause with registration
rights at Peachtree's cost and expense and include the Shares in a registration
statement to be filed by Peachtree with the Securities and Exchange Commission
within the proximate future.
8. OFFICERS AND DIRECTORS. Krause, upon the request of Peachtree, may serve
as officer and/or director of VFinance or Union Atlantic provided, however, that
Krause shall be entitled to be covered by appropriate directors and officers
liability insurance and indemnification by Peachtree in amounts and on terms
acceptable to Krause in his sole discretion.
9. RELEASE. Krause (the "Releasor") does hereby forever release and
discharge Peachtree FiberOptics, Inc., VFinance Holdings, Inc. and Union
Atlantic LC and each of the shareholders of Peachtree FiberOptics, Inc.,
VFinance Holdings, Inc. and Union Atlantic LC and each of their partners,
officers, directors, members, agents or representatives (collectively,
"Releasee") from all claims, actions, causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialities, covenants,
contracts, controversies, agreements, promises, indemnifications, variances,
trespasses, damages, judgments, extents, execution, claims, and demands
whatsoever, in law, admiralty or equity, which against the Releasee the Releasor
ever had, now has or hereafter can, shall, or may have for, upon or by reason of
any matter, cause or thing related in whole or part to the debts, promises,
agreements and/or any obligations arising from or relating to the business,
operations, corporate actions or security ownership, in connection with
Peachtree FiberOptics, Inc., VFinance Holdings, Inc. or Union Atlantic LC or
their wholly-owned or affiliated subsidiaries or businesses, including without
limitation transactions involving and allocation, ownership or issuance of
Peachtree FiberOptics, Inc. securities.
10. 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. Except with respect to the
August 16, 1999 Consulting and Acquisition Management Agreement referenced
herein above, this Agreement is the only agreement with the Company or any third
party which gives Krause the right to receive Peachtree securities.
11. WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, canceled, 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.
12. 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.
13. NO ASSIGNMENT. This Agreement is not assignable by Krause except to any
entity in which a majority in interest is owned by Krause, but shall be
assignable by Peachtree solely upon the consent of Krause.
14. HEADINGS. The headings in this Agreement are for reference purpose only
and shall not in any way affect the meaning or interpretation of this Agreement.
15. 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.
16. 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.
<PAGE> 3
17. OTHER ACTIVITIES. Nothing contained herein shall prevent Krause from
undertaking work for any other entity. The foregoing shall be subject to such
other activity not interfering with the performance by Krause of the services to
be rendered to Peachtree under this Agreement.
18. DISCLAIMER. Krause acknowledges that he has made a full and independent
inquiry regarding Peachtree and has been afforded access to such Peachtree
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
Peachtree, its officers, directors, agents, legal counsel or accountants
concerning Peachtree and/or its stock as to matters part, present or future.
19. NOTICES. All notices to be given hereunder shall be in writing, with
fax notices being an acceptable substitute for mail and/or and delivery:
As to Mr. Steven Krause:
100 E. Linton Boulevard, Suite 501-A
Delray Beach, FL 33483
As to Peachtree:
Peachtree FiberOptics, Inc.
3300 PGA Blvd., Suite 810
Palm Beach Gardens, FL 33410
Attention: Managing Agent or President
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PEACHTREE FIBEROPTICS, INC.
By: /s/ Leonard J. Sokolow
------------------------
Name: Leonard J. Sokolow
Title: Managing Agent
------------------------
STEVEN KRAUSE
<PAGE> 1
EXHIBIT 4(b)
Consulting Agreement with
Atlas, Pearlman, Trop & Borkson, P.A.
<PAGE> 2
=================
ATLAS PEARLMAN
TROP & BORKSON
==========P.A.===
ATTORNEYS AT LAW
July 16, 1999
Peachtree FiberOptics, Inc.
3300 PGA Boulevard, Suite 810
Palm Beach Gardens, FL 33410
ATTENTION: MR. LEONARD J. SOKOLOW
Re: PEACHTREE FIBEROPTICS, INC. (THE "COMPANY")
Dear Sir/Madam:
We are pleased that you wish to engage our firm to perform legal
services for the Company. From our experience, we have found that clients
appreciate a frank and open discussion and understanding of the services that we
will perform and the basis upon which they will be expected to pay for these
services. This letter (the "Agreement") is intended to set forth our
understanding as to the nature and scope of the legal services we have agreed to
render for the Company, the amount of our fees for these services, the manner in
which our fees for these services shall be determined and the terms upon which
the Company will make payment of these fees.
The Company has engaged us to act as counsel with respect to Peachtree
FiberOptics, Inc. We will focus our efforts in preparing acquisition,
consolidation and joint venture agreements and commercial agreements relative to
the Company's operations and personnel, assistance in the preparation of
documentation for filing with the Securities and Exchange Commission, state and
other regulatory authorities, the preparation of documents relative to
communications with the stockholders of the Company and other regulatory and
compliance services. The Company has authorized us to perform all acts on its
behalf which are necessary and appropriate to this representation. The primary
attorney who will be responsible for the legal services to be rendered to the
Company is James M. Schneider. In consideration for the services to be rendered
by the firm and Mr. Schneider, both previously undertaken and to be undertaken,
for the remainder of the calendar quarter ending September 30, 1999, the
Company agrees to issue to James M. Schneider, 50,000 shares of its common
stock. The Company also agrees to furnish us with a cost deposit of $500 which
will be held in trust and used to pay costs advanced on your behalf. The
services described
<PAGE> 3
Peachtree FiberOptics, Inc.
July 16, 1999
Page 2
=================
ATLAS PEARLMAN
TROP & BORKSON
===========P.A.==
hereinabove, do not reflect any work to be undertaken in connection with any
future financings undertaken by the Company which require the preparation of
private placement documentation or registration statements to be filed with the
Securities and Exchange Commission and other regulatory authorities. Any
arrangements in this regard will be undertaken separate from this assignment and
will be subject to separate compensation arrangements to be mutually agreed upon
by the parties.
The Company agrees to reimburse us or to pay directly expenses incurred
in providing legal services for it. Such costs include mileage, filing fees,
long-distance telephone charges, photocopying, telecopying, travel expenses and
other related expenses incurred in this matter. In the event any costs or
advances are anticipated, we reserve the right to require an additional cost
deposit from the Company prior to undertaking the expenditure of funds on its
behalf.
If the foregoing is agreeable, please acknowledge your understanding
and agreement by countersigning this Agreement and returning it to us in the
enclosed envelope, together with the payment of the retainer set forth above,
and we shall then commence our representation.
We appreciate the confidence in our firm and we assure you that we
shall make every effort to perform our services in a prompt and efficient
manner.
Very truly yours,
/s/ James M. Schneider
--------------------------
James M. Schneider
JMS/bb
Enclosures
AGREED TO:
PEACHTREE FIBEROPTICS, INC.
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
DATE:
----------------------------------
<PAGE> 1
EXHIBIT 4(c)
Agreement with Sidney Levine
<PAGE> 2
PEACHTREE FIBEROPTICS, INC.
3300 PGA BOULEVARD, SUITE 810
PALM BEACH GARDENS, FLORIDA 33410
July 16, 1999
Mr. Sidney Levine
3 Timber Drive
Ocean, NJ 07712
Dear Sidney:
We appreciate that you have served as a director of Peachtree
FiberOptics for in excess of six years and have not received any compensation
during this period. In addition, you have over such period of time provided
consulting and advisory services from time to time without compensation or
reimbursement for time or expenses. In recognition and in consideration of these
services, the Company has agreed to issue to you 343,666 shares of Common Stock.
The shares being issued to you represent the sole consideration which
you are entitled to receive based on the services and relationship you have had
with Peachtree FiberOptics and any of its affiliated companies. You also agree
to release Peachtree FiberOptics and its affiliates from any and all claims and
rights you have with respect to them.
You (hereinafter referred to as the "Releasor") does hereby forever
release and discharge Peachtree FiberOptics, Inc., VFinance Holdings, Inc. and
Union Atlantic LC and each of the shareholders of Peachtree FiberOptics, Inc.,
VFinance Holdings, Inc. and Union Atlantic LC and each of their partners,
officers, directors, members, agents or representatives (collectively,
"Releasee") from all claims, actions, causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialities, covenants,
contracts, controversies, agreements, promises, indemnifications, variances,
trespasses, damages, judgments, extents, execution, claims, and demands
whatsoever, in law, admiralty or equity, which against the Releasee the Releasor
ever had, now has or hereafter can, shall, or may have for, upon or by reason of
any matter, cause or thing related in whole or part to the debts, promises,
agreements and/or any obligations arising from or relating to the business,
operations, corporate actions or security ownership, in connection with
Peachtree FiberOptics, Inc., VFinance Holdings, Inc. or Union Atlantic LC or
their wholly-owned or affiliated subsidiaries or businesses, including without
limitation transactions involving and allocation, ownership or issuance of
Peachtree FiberOptics, Inc. securities.
<PAGE> 3
Very truly yours,
PEACHTREE FIBEROPTICS, INC.
By:
-----------------------------------
Name:
---------------------------------
Its: President
ACCEPTED AND AGREED
- ------------------------
SIDNEY LEVINE
<PAGE> 1
EXHIBIT (5)
Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the
issuance of Shares
pursuant to the above Consulting Agreement
<PAGE> 2
November 22, 1999
Peachtree FiberOptics, Inc.
3300 PGA Boulevard, Suite 810
Palm Beach Gardens, FL 33410
RE: REGISTRATION STATEMENT ON FORM S-8; PEACHTREE FIBEROPTICS,INC.
(THE "COMPANY"); 778,666 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 Peachtree
FiberOptics, Inc. (the "Company") and the resale of an aggregate of 778,666
shares of Common Stock, par value $.01 per share (the "Common Stock") to be
issued to Stephen Krause, James M. Schneider and Sidney Levine.
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, and various agreements and to be provided to
such persons, corporate minutes provided to us by the Company and such other
documents and instruments as we deemed necessary. 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 is validly issued, fully paid and non-assessable.
<PAGE> 3
Peachtree FiberOptics, Inc.
November 22, 1999
Page 2
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/bb
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Consulting Agreement with Stephen Krause,
Agreement with Atlas, Pearlman, Trop & Borkson, P.A. and Agreement with Sidney
Levine of our report dated February 26, 1999, except for Note 9, as to which
the date is March 18, 1999, with respect to the financial statements of
Peachtree FiberOptics, Inc. for the year ended December 31, 1998 included in
its Annual Report (Form 10-K) filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
November 19, 1999
