As filed with the Securities and Exchange Commission on July 23, 1996.
Registration Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
ONE UP CORPORATION
FLORIDA 65-0125664
STATE OF INCORPORATION IRS EMPLOYEE IDENTIFICATION NUMBER
STOCK COMPENSATION PLAN
(Full title of Plan)
Eric P. Littman, Esquire
1428 Brickell Avenue, 8th Floor
Miami, Florida 33131
(305) 372-3322
(Name, Address and Telephone Number of Agent for Service)
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APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLAN:
From Time to Time after this Registration Statement becomes Effective
CALCULATION OF REGISTRATION FEE
Proposed Maximum Amount of
Title of Each Class Amount to be Maximum Aggregate Registration
of Securities to be Registered Offering Offering Price Fee(1)
Registered Price Per
Share
- --------------------------------------------------------------------------------
Common Stock 320,000 $1.00 $320,000 $111
No Par Value shares
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the maximum number of securities issuable under the plan that are
covered by the registration statement based upon the estimated value of the
securities as set forth in the plan and pursuant to Rule 457(c).
<PAGE>
One Up Corporation
320,000 Shares of Common Stock
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION
The information required by Part I is included in documents sent or
given to participants in One Up Corporation's (the "Company") 1996D Stock
Compensation Plan pursuant to Rule 428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 13(C), 14 and 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission. The following documents, which are on file
with the Securities and Exchange Commission, are incorporated in this
Registration Statement by reference:
(a) the Registrant's: (I) latest annual report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act; (ii) the latest prospectus filed
pursuant to Rule 4524(b) under the Securities and Exchange Act of 1933, as
amended (the "Act"), which contains, either directly or by incorporation by
reference, audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed,; or (iii) the Registrant's effective
registration statement on Form S-18, if any, filed under the Exchange Act
containing audited financial statements for the Registrant's latest fiscal year.
(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 annual
reports or the prospectus referred to in (a) above.
(c) The Registrant's definitive proxy statement or the
information statement, if any, filed pursuant to Section 14 of the Exchange Act
in connection with the latest annual meeting of its stockholders, and any
definitive proxy or information statements so filed in connection with any
subsequent special meeting
of its stockholders.
(d) The description of the Common Stock which are contained in
registration statements filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
(e) Information as to stock options, including the amount
outstanding, exercises, prices and expiration dates, included in the
Registrant's definitive proxy statement, described in (c) above and which will
be included in the future either in the Registrant's proxy statements, annual
reports or appendices to the
prospectus.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
Common Stock
The authorized capital stock of the Company consists of 200,000,000
shares of Common Stock, $.001 par value. Holders of the Common Stock do not have
preemptive rights to purchase additional shares of Common Stock or other
subscription fights. The Common Stock carries no conversion fights and is not
subject to redemption or to any sinking fund provisions. All shares of Common
Stock are entitled to share equally in dividends from sources legally available
therefor when, as and if declared by the Board of Directors and, upon
liquidation or dissolution of the Company, whether voluntary or involuntary, to
share equally in the assets of the Company available for distribution to
stockholders. All outstanding shares of Common Stock are validly authorized and
issued, fully paid and nonassessable, and all shares to be sold and issued as
contemplated hereby, will be validly authorized and issued, fully paid and
nonassessable. The Board of Directors is authorized to issue additional shares
of Common Stock, not to exceed the amount authorized by the Company's
Certificate of Incorporation, on such terms and conditions and for such
consideration as the Board may deem appropriate without further stockholder
action. The above description concerning the Common Stock of the Company does
not purport to be complete. Reference is made to the Company's Certificate of
Incorporation and Bylaws which are available for inspection upon proper notice
at the Company's offices, as well as to the applicable statutes of the State of
Florida for a more complete description concerning the rights and liabilities of
stockholders. Each holder of Common Stock is entitled to one vote per share on
all matters on which such stockholders are entitled to vote. Since the shares of
Common Stock do not have cumulative voting rights, the holders of more than 50
percent of the shares voting for the election of directors can elect all the
directors if they choose to do so and, in such event, the holders of the
remaining shares will not be able to elect any person to the Board of Directors.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No such interests.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Florida Corporation Law, under the Company's
Certificate of Incorporation and By-Laws, the Company shall to the fullest
extent permitted by Delaware Law, as the same shall be added and supplemented,
indemnify any and all persons whom it shall have power to indemnify under said
Section from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said Section, and the indemnification
provided for therein shall not be deemed exclusive of any other right to which
any person may be entitled under any By-Law, resolution of shareholders,
resolution of directors, agreement or otherwise, as permitted by said Article,
as to action in any capacity in which he served at the request of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed n the Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person, in connection with securities being registered, the
Company 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 as to 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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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The Registrant hereby undertakes:
(a) 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;
(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 (I) and (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 Securities Exchange Act of 1934 that
are incorporated by reference in the registration
statement.
(b) 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.
(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 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 in the initial bona fide offering thereof.
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<PAGE>
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 Westlake, Texas, this 15th day of July, 1996.
One Up Corporation
By: /S/ Richard Dews
--------------------------------
Richard Dews, President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/RICHARD DEWS Director 7/15/96
- ------------------------
Richard Dews
/s/LEON TOUPS Director 7/15/96
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Leon Toups
/s/WAYNE SANDERSON Director 7/15/96
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Wayne Sanderson
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EXHIBIT INDEX
3.1 Certificate of Incorporation of the Company (incorporated
herein by reference to Form S-18 Registration Statement under
the Securities Act of 1933, as amended, filed with the
Commission under S.E.C. File Number 33-28809-A).
3.2 By-Laws of the Company (incorporated herein by reference to
Form S-18 Registration Statement under the Securities Act of
1933, as amended, filed with the Commission under S.E.C. File
Number 33-28809-A).
4.1 Form of Consulting Agreement with Mark Clancy
4.2 Form of Consulting Agreement with Eric P. Littman
5.3 Opinion of Eric P. Littman, P.A.
23.1 Consent of Eric P. Littman, P.A. (contained in 5.3)
23.2 Consent of Registrant's C.P.A.
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EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 5th day January, 1996,
by and between One Up Corporation,, a Florida company (the "Company") and Mark
Clancy, an individual (the "Consultant").
WHEREAS, the Company desires to receive the benefit of the expertise
knowledge and experience of the Consultant in connection with accounting and
financial services provided the Company; and
WHEREAS, each of the Company and Consultant desires to enter into this
Consulting Agreement;
NOW THEREFORE, in consideration of the respective covenants and
agreements of the parties set forth herein, the parties hereby agree as follows:
1. TERM AND SERVICES. Commencing as of the date of the date
hereof, and continuing thereafter through June 30, 1997, (the "Consulting
Period"), the Consultant shall consult with the Company in an advisory capacity
when reasonably requested to do so by the Company in connection with the
Company's business throughout the United States; provided that the consultations
shall be performed in the place or places and at the time or times and in the
manner that shall be reasonably acceptable to consultant.
2. COMPENSATION. As compensation for performing consulting
services for the Company during the Consulting Period, the Company shall cause
300,000 shares of its Common Stock, to be issued to the Consultant.
3. PROPRIETARY INFORMATION. Upon termination of this Consulting
Agreement for any reason, the Consultant shall forthwith deliver or cause to be
delivered to the Company any and all "proprietary information" including
drawings, notebooks, keys, data, and other documents and materials belonging to
the Company which is in the possession of, or under the control of the
Consultant relating to the Company or the Company's business, and will deliver
upon such expiration any other property of the Company which is the possession
or control of the Consultant.
For purposes of this Consulting Agreement, the term "proprietary
information" shall mean any information relating to the Company that has not
previously been publicly released by duly authorized representatives of the
Company and shall include, without limitation, information included in all
drawings, designs, plans, proposals, marketing and sales programs, financial
information, costs, pricing information, customer information and all methods,
concepts or ideas in or reasonably related to the Company's business. The
Consultant understands and agrees that all "proprietary information" conceived
by him either along or with others or provided to him by the Company or others
is the sole and exclusive property of the Company.
4. MISCELLANEOUS PROVISIONS.
(a) Neither the Company nor the Company may, at any time,
assign this Consulting Agreement, nor any right or interest hereunder.
(b) For purposes of this Consulting Agreement, the term
"Company" shall mean and include any all subsidiaries and affiliated companies
of the Company is existence from time to time.
(c) All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, and addressed to such addresses as the parties from
time to time designate.
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(d) The parties agree that the relationship created by this
Consulting Agreement is that of an independent contractor and that neither party
intends to create an employee/employer relationship, joint venture or any other
type of relationship.
(e) This instrument contains the entire agreement of the
parties and may be modified only by agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. If any provision of this Agreement is declared void, such
provision shall be deemed severed from this Agreement, which shall otherwise
remain in full force and
effect.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the Sate of Florida and the proper venue and
jurisdiction for any action or claim with respect to this Agreement or any
document delivered pursuant hereto shall be in the appropriate state court in
Dade County, Florida. If any such action is brought, the Parties irrevocably
waive the right to a trial by jury. In addition, the prevailing party shall be
entitled to attorney's fees, at all levels of such action, including appellate
levels.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement.
One Up Corporation
By: /S/RICHARD DEWS /S/ MARK CLANCY
- ------------------------------ ------------------------
Richard Dews, President Mark Clancy
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 5th day of January,
1996, by and between One Up Corporation, a Florida company (the "Company") and
Eric P. Littman, an individual (the "Consultant").
WHEREAS, the Company desires to receive the benefit of the expertise
knowledge and experience of the Consultant in connection with legal services
provided the Company; and
WHEREAS, each of the Company and Consultant desires to enter into this
Consulting Agreement;
NOW THEREFORE, in consideration of the respective covenants and
agreements of the parties set forth herein, the parties hereby agree as follows:
1. TERM AND SERVICES. Commencing as of the date of the date
hereof, and continuing thereafter through December 31, 1996, (the "Consulting
Period"), the Consultant shall consult with the Company in an advisory capacity
when reasonably requested to do so by the Company in connection with the
Company's business throughout the United States; provided that the consultations
shall be performed in the place or places and at the time or times and in the
manner that shall be reasonably acceptable to consultant.
2. COMPENSATION. As compensation for performing consulting
services for the Company during the Consulting Period, the Company shall cause
20,000 shares of its Common Stock, to be issued to the Consultant.
3. PROPRIETARY INFORMATION. Upon termination of this Consulting
Agreement for any reason, the Consultant shall forthwith deliver or cause to be
delivered to the Company any and all "proprietary information" including
drawings, notebooks, keys, data, and other documents and materials belonging to
the Company which is in the possession of, or under the control of the
Consultant relating to the Company or the Company's business, and will deliver
upon such expiration any other property of the Company which is the possession
or control of the Consultant.
For purposes of this Consulting Agreement, the term "proprietary
information" shall mean any information relating to the Company that has not
previously been publicly released by duly authorized representatives of the
Company and shall include, without limitation, information included in all
drawings, designs, plans, proposals, marketing and sales programs, financial
information, costs, pricing information, customer information and all methods,
concepts or ideas in or reasonably related to the Company's business. The
Consultant understands and agrees that all "proprietary information" conceived
by him either along or with others or provided to him by the Company or others
is the sole and exclusive property of the Company.
4. MISCELLANEOUS PROVISIONS.
(a) Neither the Company nor the Company may, at any time,
assign this Consulting Agreement, nor any right or interest hereunder.
(b) For purposes of this Consulting Agreement, the term
"Company" shall mean and include any all subsidiaries and affiliated companies
of the Company is existence from time to time.
(c) The parties agree that the relationship created by this
Consulting Agreement is that of an independent contractor and that neither party
intends to create an employee/employer relationship, joint
venture or any other type of relationship.
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(d) This instrument contains the entire agreement of the
parties and may be modified only by agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. If any provision of this Agreement is declared void, such
provision shall be deemed severed from this Agreement, which shall otherwise
remain in full force and effect.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the Sate of Florida and the proper venue and
jurisdiction for any action or claim with respect to this Agreement or any
document delivered pursuant hereto shall be in the appropriate state court in
Dade County, Florida. If any such action is brought, the Parties irrevocably
waive the right to a trial by jury. In addition, the prevailing party shall be
entitled to attorney's fees, at all levels of such action, including appellate
levels.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement.
One Up Corporation
By: /S/ RICHARD DEWS /S/ ERIC P. LITTMAN
-------------------------- ------------------------
Richard Dews, President Eric P. Littman
2
July 16, 1996
Board of Directors
One Up Corporation
5 Campus Circle
Suite 100 Westlake, TX 76262.
Re: One Up Corporation
S-8 Registration Statement
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about July 17,
1996, in connection with the registration under the Securities Act of 1933, as
amended, of 320,000 shares of your Common Stock, no par value (exclusive of any
securities associated therewith, the "Stock") to be sold by you pursuant to your
Stock Purchase Plan 1996D, as amended (the "Purchase Plan").
As your counsel, we have examined the proceedings relating to and action taken
by you in connection with the adoption of the Purchase Plan. It is our opinion
that the 320,000 shares of the Stock that may be issued and sold by you pursuant
to the Purchase plan, when issued and sold in the manner provided in the
Purchase Plan, will be validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto. In providing this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, or the rules and
regulations of the Commission thereunder.
Very truly yours,
/S/ ERIC P. LITTMAN
- -----------------------
Eric P. Littman
EPL/ic
July 16, 1996
Board of Directors
One Up Corporation
5 Campus Circle
Suite 100 Westlake, TX 76262.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our most recent
report filed with the Commission, and references to our
firm included in this registration statement.
/S/ANGEL E. LANA, P.A
- ----------------------------
Angel E. Lana, P.A.
