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As filed with the Securities and Exchange Commission on: May 22, 1997.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
United Petroleum Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-310494
(State of incorporation) (I.R.S. Employer I.D. Number)
1111 Northshore Drive - Suite N. 425
Knoxville, Tennessee 37919
(Address of principal executive offices) (zip code)
United Petroleum Corporation 1994 Stock Option
and Stock Bonus Plan and the 1997 Amendment
Full Title of the Plan
Mr. Michael F. Thomas, President
United Petroleum Corporation
1111 Northshore Drive - Suite N. 425
Knoxville, Tennessee 37919
(Name and address of agent for service)
(423) 909-0890
(Telephone number, including area code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Amount To Proposed Proposed Amount of
Class of Be Maximum Maximum Fee
Securities Registered Price Offering
To Be (1) per Price
Registered Share(2)
===============================================================================
Common 2,500,000 $0.42 $1,050,000 $318.18
Stock,
$.01 par
value
- -------------------------------------------------------------------------------
- -----------------
(1) This registration statement covers 2,500,000 shares, the increased
number of shares for which options may be granted or bonus shares issued under
the 1994 Stock Option and Stock Bonus Plan as the result of the 1997 Amendment
to the 1994 Stock Option and Stock Bonus Plan. In addition, this registration
statement covers such additional indeterminate number of shares of Common Stock
as may be issued upon exercise of options by reason of adjustments in the
number of shares of Common Stock pursuant to anti-dilution provisions contained
in the plan under which the options were granted. Because such additional
shares of Common Stock will, if issued, be issued for no additional
consideration, no registration fee is required.
(2) Estimated solely for calculation of the amount of the registration
fee. All shares of Common Stock are being offered to employees (as said term is
defined in the General Instructions to the Form S-8) who are not restricted as
to the price or prices at which such securities may be sold. It is anticipated
that such securities will be offered at prices approximating fluctuating market
prices. Therefore, pursuant to Rule 457 of the Securities Act of 1933, as
amended, the registration fee has been calculated based upon the higher of (i)
the average of $0.40625 per share and $0.4375 per share, the bid and asked
prices of the Company's Common Stock on May 19, 1997 as reported by The NASDAQ
Stock Market, Small Cap Market, or (ii) the maximum exercise price per share
for shares of common stock issuable upon exercise of options to purchase common
stock.
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Prior Registration Statement
This registration statement on Form S-8 relates to registration
statements on Form S-8, file no. 33-86206, filed on November 8, 1994, which
registered shares issuable in accordance with the terms of the 1994 Stock
Option and Stock Bonus Plan, and which was amended by amendment filed with the
Securities and Exchange Commission on May 8, 1995, Registration Statement on
Form S-8, file no. 33-92054, and by amendment filed with the SEC on September
3, 1996, Registration Statement on Form S-8, file no. 333-11293 and such
registration statements are incorporated by reference herein.
Additional Information
This registration statement of Form S-8 covers 2,500,000 shares, the
increased number of shares for which options may be granted or bonus shares
issued under the 1994 Stock Option and Stock Bonus Plan (the "Plan"), as
amended by the 1997 Amendment to the Plan.
Item 8. Exhibits.
4.1 One Capital Advisory Agreement*
4.2 Wood Capital Associates Consulting Agreement*
4.3 United Petroleum Corporation 1994 Stock Option and Stock Bonus
Plan*
4.4 1995 Amendment to United Petroleum Corporation 1994 Stock
Option and Stock Bonus Plan**
4.5 1996 Amendment to United Petroleum Corporation 1994 Stock
Option and Stock Bonus Plan. ***
4.6 Agreement between M.A.G. & Associates, Inc. and United
Petroleum Corporation**
4.7 Agreement between Strategic Holdings Corporation and United
Petroleum Corporation ***
4.8 1997 Amendment to United Petroleum Corporation 1994 Stock
Option and Stock Bonus Plan.
4.9 Agreement between Joel Brownstein and United Petroleum
Corporation dated April 25, 1997.
5.1 Opinion of Brenman Key & Bromberg, PC.*
5.2 Opinion of Robson & Miller, LLP
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24.1 Consent of Reel & Swafford, PLLC
24.2 Consent of Robson & Miller, LLP which is contained in Exhibit
No. 5.2
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*Incorporated by reference to Registration Statement on Form S-8,
no. 33-86206 filed on November 8, 1994.
**Incorporated by reference to Registration Statement on Form S-8,
no. 33-92054 filed on May 8, 1995.
*** Incorporated by reference to Registration Statement on Form S-
8, no. 333-11293 filed on September 3, 1996.
[Rest of Page Intenionally Left Blank]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Knoxville, State of Tennessee, on May 20, 1997.
UNITED PETROLEUM CORPORATION
(Registrant)
By: /s/ Michael F. Thomas
----------------------------
Michael F. Thomas, President
Pursuant to the requirements of the Securities Act of 1933, this
report has been signed below by the following persons on behalf of the
registrant and in their capacities and on the dates indicated.
Signature Title Date
/s/ Michael F. Thomas Chief Executive May 20, 1997
- ---------------------- Officer, and
Michael F. Thomas Director
/s/ Dwight S. Thomas Director May 20, 1997
- ----------------------
Dwight S. Thomas
/s/ Neal Melnick Director May 20, 1997
- ----------------------
Neal Melnick
Director May , 1997
- ----------------------
Walter Helton
Director May , 1997
- ----------------------
Arthur H. VanBuren
/s/ Charles Lobetti Principal Financial May 20, 1997
- ---------------------- and Accounting
Charles Lobetti Officer
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EXHIBIT 4.8
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UNITED PETROLEUM CORPORATION
1997 AMENDMENT TO
1994 STOCK AND STOCK BONUS PLAN
The 1994 Stock Option and Stock Bonus Plan (the "Plan") of United
Petroleum Corporation (the "Company") is hereby amended as follows:
Paragraph 4(a) is hereby further amended to provide that the aggregate
number of shares of Common Stock as to which Options and Bonuses may be granted
from time to time under the Plan shall be increased from 2,200,000 to
4,700,000.
This amendment to the Plan was approved by the Board of Directors of
the Company on May 14, 1997. If this Amendment is not approved by the
shareholders of the Company within 12 months of the date the Amendment was
approved by the Board of Directors of the Company as required by Section
411(b)(1) of the Internal Revenue Code, this Amendment and any options granted
thereunder shall be and remain effective, but the reference to Incentive Stock
Options in the Plan shall be deleted and all options granted pursuant to this
Amendment shall be Non-Qualified Stock Options pursuant to Section 7 of the
Plan.
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EXHIBIT 4.9
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CONSULTING AGREEMENT
This Agreement made this 25th day of April, 1997, by and between Joel
Brownstein ("Consultant") and United Petroleum Corporation a Delaware
corporation ("UPET").
RECITALS:
A. Consultant is an individual engaged in advising and assisting business
entities in mergers, acquisitions and the financing of such
transactions; and has substantial experience in such matters and the
sources to assist in completing these types of transactions; and in
dealing with brokers, dealers and underwriters.
B. UPET is a publicly traded corporation, currently listed on the NASDAQ
Small Cap exchange, which is engaged, through one of its subsidiaries,
in full service car washes, gasoline and convenience stores, and quick
lube centers; and in another subsidiary in the drilling and production
of natural gas and oil.
C. UPET is interested in the expansion of it's business through
acquisitions of existing like businesses, and requires the assistance
of Consultant in advising it as to, evaluating, negotiating and
financing such acquisitions; in the restructuring of UPET and it's
subsidiaries; and in disclosing to the public, in a appropriate and
positive manner, its current and prospective operations.
NOW THEREFORE, WITNESSETH, that in consideration of the mutual
covenants contained herein and other good and valuable considerations, receipt
of which is acknowledged, the parties agree as follows:
1. Engagement. UPET engages Consultant and Consultant agrees to the engagement
to perform the services hereinbelow defined.
2. Scope of Agreement. Consultant agrees that it will, at the direction of the
President, CEO and/or Board of Directors ("Directors") of UPET perform such
services as may be requested including but not limited to: (a) identifying
potential acquisition or merger candidates; (b) advising UPET on the viability
of potential acquisitions or mergers; (c) advising UPET on negotiating
strategies; (d) locating and arranging potential financing for identified
acquisitions or mergers; and advising UPET on matters related to; (e) raising
Equity or Quasi-Equity for UPET or its subsidiaries; and (f) locating and
arranging Debt financing for UPET or its subsidiaries.
3. Compensation. (a) A initial payment in the amount of $8,000, which
payment shall be payable in cash;
(b) UPET agrees to pay to Consultant a monthly fee in
the amount of $8,500 per month commencing 30 days from the date of this
Agreement, which retainer shall be payable $3,000 in cash and $5,500 in S-8 free
trading common stock of UPET. The shares to be issued shall valued at the
average closing bid price for the stock based on the five days preceding
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the date on which the payment is due; which shares will be delivered to
Consultant within 8 days of the date payment is due.
(c) UPET agrees to pay to Consultant a (6%)
commission payable in cash for each acquisition or merger consummated by the
UPET or any Affiliate of the UPET during the Term hereof as a result of the
efforts and/or introduction by Consultant. The commissions shall be based upon
the consideration (whether such consideration is in the form of cash, stock,
notes, bonds, debentures, reserved production payments or other reserved
interests or any other thing of value, or any combination of the foregoing)
actually paid or agreed to be paid by the UPET or any Affiliate of the UPET in
connection with an acquisition or merger, shall be paid to Consultant within ten
(10) days of the closing of the acquisition or merger, paid, which shall be
chargeable to such acquisition or merger. During the initial four (4) month
term, the commission shall be inclusive of any compensation due to Anthony J.
Julian and James E. Talkington. Thereafter, as to any commissions due and
payable to Consultant, such commissions shall exclude Anthony J. Julian and
James E. Talkington.
(d) UPET agrees to pay to Consultant a commission
payable in cash for Equity or Quasi-Equity raised by the UPET or any Affiliate
of the UPET during the Term hereof in which Consultant has performed services
and participated in raising such Equity or Quasi-Equity as hereinabove defined.
The commissions shall be based upon the consideration (whether such
consideration is in the form of cash, stock, notes, bonds, debentures, reserved
production payments or other reserved interests or any other thing of value, or
any combination of the foregoing) actually paid or agreed to be paid by the UPET
or any Affiliate of the UPET in connection with such Equity or Quasi-Equity,
shall be paid to Consultant within ten (10) days of the closing of Equity or
Quasi-Equity which shall be chargeable to such Equity or Quasi-Equity, and shall
be 6% of the Equity or Quasi-Equity. During the initial four (4) month term, the
commission shall be inclusive of any compensation due to Anthony J. Julian and
James E. Talkington. Thereafter, as to any commissions due and payable to
Consultant, such commissions shall exclude Anthony J. Julian and James E.
Talkington.
(e) UPET agrees to pay to Consultant a commission
payable in cash for Debt raised by the UPET or any Affiliate of the UPET during
the Term hereof in which Consultant has performed services and participated in
raising such Debt as hereinabove defined. The commissions shall be based upon
the Face Amount of such Debt (whether such Debt is in the form of cash,
debentures, or any other thing of value, or any combination of the foregoing)
actually paid or agreed to be paid by the UPET or any Affiliate of the UPET in
connection with such Debt, shall be paid to Consultant within ten (10) days of
the closing of Debt which shall be chargeable to such Debt, and shall be 2% of
the Debt. During the initial four (4) month term, the commission shall be
inclusive of any compensation due to Anthony J. Julian and James E. Talkington.
Thereafter, as to any commissions due and payable to Consultant, such
commissions shall exclude Anthony J. Julian and James E. Talkington.
(f) UPET agrees to reimburse Consultant for all
reasonable and necessary expenses incurred by him in the performance of his
duties under this Agreement;
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provided however, that Consultant shall obtain the prior approval of UPET as to
any expenses exceeding $100.
(g) UPET and its board of directors agrees to grant
to Consultant the following Stock Options: (i) within 10 days of the execution
of this Agreement, 250,000 options exercisable at $.50 per share, within 5 years
from issue, which options shall vest upon receipt by Consultant which shall
occur within two (2) weeks of the grant; and (ii) Ninety (90) days from the date
of execution of this Agreement, 250,000 options exercisable at $1.00 per share,
within 5 years from issue, which options shall vest upon receipt by Consultant
which shall occur within two (2) weeks of the grant.
4. Confidentiality. (a) During the Term of this Agreement and thereafter,
Consultant agrees to maintain the confidential nature of the UPET's trade
secrets, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know-how", methods of
doing business, customer, supplier and distributor lists and all other
confidential information of the UPET. Consultant shall not use (other than in
connection with his services), in any way whatsoever, such trade secrets except
as authorized in writing by the UPET. Consultant shall, upon the termination of
this agreement, deliver to the UPET any and all records, books, documents or any
other materials whatsoever (including all copies thereof) containing such trade
secrets, which shall be and remain the property of the UPET.
(b) All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the UPET which Consultant shall prepare or use, or come into contact
with, shall be and remain the sole property of the UPET and, effective
immediately upon the termination of this Agreement with the UPET for any reason,
shall not be removed from the UPET's premises without the UPET's prior written
consent.
5. Severability. If any covenant or provision contained in this Agreement is
determined to be void or unenforceable in whole or in part, it shall not be
deemed to affect or impair the validity of any other covenant or provision. If,
in any arbitration or judicial proceeding, a tribunal shall refuse to enforce
any provision, then such unenforceable provision(s) shall be deemed eliminated
from the provisions hereof for the purpose of such proceedings to the extent
necessary to permit the remaining separate covenants to be enforced in such
proceedings.
6. Term. The term of this agreement is 4 months. This Agreement may be extended
by agreement of the parties for an additional 4 month term; thereafter, this
Agreement may be further extended by agreement of the parties.
7. Equitable Remedies. Consultant and UPET agree that the services to be
rendered by Consultant pursuant to this Agreement, and the rights and interests
granted and the obligations to be performed by Consultant to UPET pursuant to
this Agreement, are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in any action at law, and that a
breach by Consultant of any of the terms of this Agreement will cause UPET great
and irreparable injury and
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damage. Consultant hereby expressly agrees that UPET shall be entitled to
the remedies of injunction, specific performance and other equitable
relief to prevent a breach of the Confidentiality provisions of this
Agreement, both pendente lite and permanently, against Consultant, as
such breach would cause irreparable injury to UPET and a remedy at law
would be inadequate and insufficient. Therefore, UPET may, in addition to
pursuing its other remedies, obtain an injunction from any court having
jurisdiction in the matter restraining any further violation.
8. Rights and Remedies Preserved. Nothing in this Agreement shall limit
any right or remedy that UPET or Consultant may have under this Agreement
or pursuant to law for any breach of this Agreement by the other party.
The rights granted to the parties herein are cumulative and the election
of one shall not constitute a waiver of such party's right to assert all
other legal remedies available under the circumstances.
9. No Waivers. The failure to either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision,
nor prevent such party thereafter from enforcing such provision or any
other provision of this Agreement.
10. Notices. Any notice to be given to the UPET and Consultant under the
terms of this Agreement may be delivered personally, by telecopy, telex
or other form of written electronic transmission, or by registered or
certified mail, postage prepaid, and shall be addressed as follows:
If to the UPET: United Petroleum Corporation
4867 North Broadway
Knoxville, Tennessee 37918
Attention: Secretary
Telephone: (423) 688-0582
Telecopy: (423) 688-2266
If to Consultant: Joel Brownstein
1441 3rd Avenue, Apt. 7B
New York, New York 10028
Telephone: (212) 734-1848
Telecopy:
AND a Copy to: Neal S. Melnick, Esquire
P.O. Box 2681
Knoxville, TN 37917
Telephone: (423) 525-3900
Telecopy: (423) 523-2681
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally
delivered, (ii) when telecopied, telexed or transmitted by other form of
written electronic transmission (upon confirmation of receipt) or (iii)
on the third day after it is mailed by registered or certified mail,
postage prepaid, as provided herein.
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11. Severability. The provisions of this Agreement are severable and if
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
12. Successor and Assigns. The rights and obligations of the UPET under
this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the UPET, including the survivor upon any
merger, consolidation, share exchange or combination of the UPET with any
other entity. Consultant shall not have the right to assign, delegate or
otherwise transfer any duty or obligation to be performed by it hereunder
to any person or entity.
13. Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto,
oral or written, and may not be modified or terminated orally. No
modification, termination or attempted waiver shall be valid unless in
writing, signed by the party against whom such modification, termination
or waiver is sought to be enforced. This Agreement was the subject of
negotiation by the parties hereto and their counsel. The parties agree
that no prior drafts of this Agreement shall be admissible as evidence
(whether in any arbitration or court of law) in any proceeding which
involves the interpretation of any provisions of this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Tennessee without
reference to the conflict of law principles thereof.
15. Section Headings. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
16. Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though
in the plural and words in the plural shall be read and construed as
though in the singular in all cases where they would so apply.
17. Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
18. Prior Consent. This Agreement is subject to the written consent of
due Anthony J. Julian and James E. Talkington, Jr. under a
Non-Circumvention Agreement dated January 8, 1997.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
ATTEST: UNITED PETROLEUM CORPORATION
A Delaware Corporation,
/s/ Dwight Thomas By: /s/ Michael F. Thomas
- ------------------ ---------------------
Secretary Title: President
------------------
/s/ illegible /s/ Joel Brownstein
- ------------------ -------------------------
Witness JOEL BROWNSTEIN
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EXHIBIT 5.2 AND 24.2
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[ROBSON & MILLER, LLP LETTERHEAD]
May 21, 1997
United Petroleum Corporation
4867 North Broadway
Knoxville, Tennessee 37928
Re: United Petroleum Corporation
----------------------------
Gentlemen:
We have acted as counsel to United Petroleum Corporation, a Delaware
corporation (the "Company"), in connection with a registration statement on
Form S-8 (the "Registration Statement"), to be filed with the Securities and
Exchange Commission for the purpose of registering an aggregate of 2,500,000
shares (the "Shares") of common stock, $.01 par value per share (the "Common
Stock"), of the Company under the Securities Act of 1933, as amended (the
"Act"), to be issued upon proper exercise of various stock options or as bonus
shares in accordance with the 1994 Stock Option and Stock Bonus Plan (the
"Plan"), as amended by the 1995 Amendment as further amended by the 1996 and
1997 Amendments to the Plan (collectively the "Amended Plan").
As counsel for the Company, we have examined and are familiar with the
Certificate of Incorporation and By-Laws of the Company, and all amendments
thereto. We are also familiar with the form of the Company's stock certificate,
the various stock option agreements and the Amended Plan pursuant to which
shares of Common Stock are to be issued, as well as all corporate proceedings
taken by the Company in connection with the authorization of the issuance of
the Shares. Throughout such examination we have assumed the genuineness of
signatures and accuracy and conformity to original documents of all copies of
documents supplied to us. As to questions of fact material to the opinion
expressed herein, we have, when relevant facts were not independently
determinable, relied upon information furnished to us by officers and directors
of the Company or their duly authorized agents or employees.
Based upon the foregoing, it is our opinion that the Shares to be
issued in accordance with the Amended Plan, when certificates therefor have
been duly executed and delivered and the
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Robson & Miller, LLP
consideration therefor duly paid, either as services performed for bonus
shares, or upon proper exercise of the several stock option agreements, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Robson & Miller, LLP
Robson & Miller, LLP
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EXHIBIT 24.1
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[REEL & SWAFFORD, PLLC LETTERHEAD]
Independent Auditors' Consent
The Board of Directors
United Petroleum Corporation
We consent to the reference to our firm under the caption "Experts" in the
amended Form S-8 (identified below) of United Petroleum Corporation and
Subsidiaries (UPET) and to the use in the Form S-8 of UPET of our report dated
April 3, 1997, on the consolidated balance sheets of UPET as of December 31,
1996 and 1995, and the related consolidated statements of income, changes in
stockholder's equity and cash flows for the years then ended.
The Form S-8 is for the purpose of amending the Company's incentive stock
option plan.
/s/ Reel & Swafford, PLLC
Certified Public Accountants
May 20, 1997
