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Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
YIELDUP INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0341206
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
117 EASY STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of principal executive offices) (Zip code)
YIELDUP INTERNATIONAL CORPORATION
1995 STOCK OPTION PLAN
(Full title of the plan)
RAJ MOHINDRA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
YIELDUP INTERNATIONAL CORPORATION
117 EASY STREET
MOUNTAIN VIEW, CALIFORNIA 94043
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 964-0100
This registration statement, including all exhibits and attachments, contains 12
pages. The exhibit index may be found on page 8 of the consecutively numbered
pages of the registration statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Amount Maximum Maximum
to be to be Offering Aggregate Amount of
Registered Registered Price Per Unit* Offering Price * Registration Fee
<S> <C> <C> <C> <C>
Common Stock 250,000 $6.44 $1,610,000 $487.89
</TABLE>
* Estimated, pursuant to Rule 457(c), solely for the purpose of calculating the
registration fee based on the average of the high and low prices for the
securities, as reported on the Nasdaq Small Cap Market on January 6, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
YieldUP International Corporation, (the "Company") hereby
incorporates by reference in this registration statement the following
documents:
(a) The Company's latest annual report on Form 10-KSB filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1995 as filed with the Commission on March
28, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above including:
(1) Report on Form 10-QSB filed with the Commission on
4/30/96
(2) Report on Form 10-QSB filed with the Commission on
8/7/96
(3) Report on Form 10-QSB filed with the Commission on
10/31/96
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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The validity of the shares of Common Stock to be offered hereunder
has been passed upon for the Company by Gray Cary Ware & Freidenrich, A
Professional Corporation. As of January 7, 1997 a partnership comprised of
certain current and former attorneys of Gray Cary Ware & Freidenrich owned 5,027
shares of Class A Common Stock of the Company.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits
indemnification of officers, directors, and other corporate agents under certain
circumstances and subject to certain limitations. The Registrant's Certificate
of Incorporation and By-Laws provide that the Registrant shall indemnify its
directors, officers, employees and agents to the full extent permitted by
Delaware General Corporation Law, including in circumstances in which
indemnification is otherwise discretionary under Delaware law. In addition, the
Registrant has entered into separate indemnification agreements with its
directors and officers which would require the Registrant, among other things,
to indemnify them against certain liabilities which may arise by reason of their
status or service (other than liabilities arising from willful misconduct of a
culpable nature) and to maintain directors' and officers' liability insurance,
if available on reasonable terms.
These indemnification provisions and the indemnification agreement
entered into between the Registrant and its officers and directors may be
sufficiently broad to permit indemnification of the Registrant's officers and
directors for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(3) 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.
(b) Filing incorporating subsequent Exchange Act documents by reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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
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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.
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SIGNATURE
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 Mountain View, State of California, on January
10, 1997.
YieldUP International Corporation
By: ___________________________
Raj Mohindra, President and
Chief Executive Officer
_______________________________
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POWER OF ATTORNEY
The officers and directors of YieldUP International Corporation whose
signatures appear below, hereby constitute and appoint Raj Mohindra and Scott
Gibson, and each of them, their true and lawful attorneys and agents, with full
power of substitution, with power to act alone, to sign and execute on behalf of
the undersigned any amendment or amendments to this registration statement on
Form S-8, and each of the undersigned does hereby ratify and confirm all that
each of said attorney and agent, or their, her or his substitutes, shall do or
cause to be done by virtue hereof.
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 indicated on January 10, 1997.
________________________________________________________________________________
Signature Title
______________________________
Raj Mohindra
President, Chief Executive Officer and
Director (Principal Executive Officer)
______________________________
Scott Gibson
Chief Financial Officer (Principal
Financial and Accounting Officer)
______________________________
Abhay Bhushan
Director
______________________________
William W.R. Elder
Director
______________________________
Ram Paul Gupta
Director
______________________________
Suraj Puri
Director
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EXHIBIT INDEX
Sequentially
Numbered Page
-------------
1 Certificate of Incorporation of the --
Company, is incorporated by reference to
Exhibit 3.2 of the Registration Statement on
Form SB-2 (Reg. No. 333-97792-LA).
4.2 Bylaws of the Company are incorporated by --
reference to Exhibit 3.3 of the Registration
Statement on Form SB-2 (Reg. No.
333-97792-LA).
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of KPMG Peat Marwick LLP --
24 Power of Attorney (included in signature --
pages to this registration statement)
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Exhibit 5
[Square Graph]
ATTORNEYS AT LAW
4365 EXECUTIVE DRIVE, SUITE 1600
SAN DIEGO, CA 92121-2189
TEL (619) 677-1400
FAX (619) 677-1477
OUR FILE NO.
1250160-900000
January 10, 1997
YieldUP International Corporation
117 Easy Street
Mountain View, CA 94043
RE: REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES
ISSUABLE UNDER THE 1995 STOCK OPTION PLAN
Ladies and Gentlemen:
We are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of 250,000 shares of the Common
Stock, $0.001 par value, of YieldUP International Corporation, a Delaware
Corporation (the "Company") which may be issued pursuant to the exercise of
options granted under the YieldUP International Corporation 1995 Stock Option
Plan (the "Plan").
We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the corporation laws of the State of Delaware and the federal law
of the United States.
As to matters of Delaware corporation law, we have based our opinion
solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice in
jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 250,000
shares of Common Stock which may be issued upon exercise of options granted
under the Plan are duly authorized shares of the Company's Common Stock, and,
when issued against receipt of the consideration therefor in accordance with the
provisions of the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GARY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
YieldUP International Corporation
We consent to the incorporation by reference in the registration statement dated
January 10, 1997 on Form S-8 of YieldUP International Corporation 1995 Stock
Option Plan of our report dated February 14, 1996, relating to the balance
sheets of YieldUP International Corporation as of December 31, 1995 and 1994,
and the related statements of operations, stockholders' equity (deficiency), and
cash flows for the years then ended, which report appears in the December 31,
1995 annual report on Form 10-KSB of YieldUP International Corporations.
Our report dated February 14, 1996 contains an explanatory paragraph that states
that the Company's recurring losses from operations raise substantial doubt
about its ability to continue as a going concern. The financial statements do
not include any adjustments that might result from the outcome of this
uncertainty.
KPMG PEAT MARWICK LLP
San Jose, California
January 10, 1997
