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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 XXXXXXX XXXXXX ("Xxxxxx" or "Consultant").
WITNESSETH:
1. Xxxxxx is party to a Consulting and Acquisition Management Agreement dated
August 16, 1999 pursuant to which Xxxxxx 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 Xxxxxx and to continue to use
the services of Xxxxxx in connection with the management of the operations
of Peachtree and the companies to be acquired; and
3. Xxxxxx 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 Xxxxxx'x 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, Xxxxxx 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,
Xxxxxx 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 Xxxxxx 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 Xxxxxx'x services rendered to
Peachtree prior to the date of this Agreement, Peachtree shall pay to Xxxxxx 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 Xxxxxx after the date of this Agreement, Xxxxxx 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
Xxxxxx 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, Xxxxxx 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. Xxxxxx 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.
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7. REGISTRATION. Peachtree agrees to provide Xxxxxx 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. Xxxxxx, upon the request of Peachtree, may serve
as officer and/or director of VFinance or Union Atlantic provided, however, that
Xxxxxx shall be entitled to be covered by appropriate directors and officers
liability insurance and indemnification by Peachtree in amounts and on terms
acceptable to Xxxxxx in his sole discretion.
9. RELEASE. Xxxxxx (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 Xxxxxx 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 Xxxxxx except to any
entity in which a majority in interest is owned by Xxxxxx, but shall be
assignable by Peachtree solely upon the consent of Xxxxxx.
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.
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17. OTHER ACTIVITIES. Nothing contained herein shall prevent Xxxxxx from
undertaking work for any other entity. The foregoing shall be subject to such
other activity not interfering with the performance by Xxxxxx of the services to
be rendered to Peachtree under this Agreement.
18. DISCLAIMER. Xxxxxx 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 Xx. Xxxxxx Xxxxxx:
000 X. Xxxxxx Xxxxxxxxx, Xxxxx 000-X
Xxxxxx Xxxxx, XX 00000
As to Peachtree:
Peachtree FiberOptics, Inc.
0000 XXX Xxxx., Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
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/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Agent
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XXXXXX XXXXXX
