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Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ONE UP CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 65-0125664
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 CAMPUS CIRCLE 76262
SUITE 100 (Zip Code)
WESTLAKE, TEXAS
(Address of principal executive offices)
ONE UP CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
MICHAEL E. URA
5 CAMPUS CIRCLE
SUITE 100
WESTLAKE, TEXAS 76262
(Name and address of agent for service)
(817) 264-9500
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities Amount To Be Offering Price Aggregate Amount of
To Be Registered Registered Per Share (1) Offering Price(1) (2) Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
No par value per share 400,000 Shares $0.5625 $400,000 $122.00
(3)
===========================================================================================================
</TABLE>
(1) Calculated on the basis of the average of the bid and asked price of the
Registrants Common Stock on December 23, 1996, as reported by the NASDAQ
OTC Bulletin Board.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) and Rule 457(h)(1).
(3) Issuable in connection with securities available for grant under the
plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting PartI of this Registration Statement will be
sent or given to employees and directors of One Up Corporation ("One Up" or the
"Company"), as specified by Rule428(b)(1) promulgated under the Securities Act
of 1933, as amended (the "Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company with the
Commission are incorporated herein by reference:
1. Annual Report on Form10-KSB for the year ended December31, 1995,
filed on July 8, 1996.
2. Quarterly Report on Form 10-QSB for the quarter ended March 31, 1996,
filed on July 15, 1996.
3. Quarterly Report on Form 10-QSB for the quarter ended June 30, 1996,
filed on October 30, 1996.
4. Quarterly Report on Form 10-QSB for the quarter ended September 30,
1996, filed on November 14, 1996.
5. Current Reports on Forms 8-K filed on November 27, 1996, December 11,
1996, and December 27, 1996.
In addition, all documents subsequently filed by the Company pursuant to
Sections13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), 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 deemed incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Common Stock
The holders of Common Stock are entitled to one vote for each share held
of record on all matters on which the holders of Common Stock are entitled to
vote. After the 12% dividend rate is paid on the Preferred Stock, the holders
of Common Stock shall be entitled to share equally on
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a per share basis in dividends when, as and if declared by the Board of
Directors out of funds legally available therefor. In the event of liquidation,
partial return of capital or dissolution of the Company, the holders of the
Common Stock are entitled, subject to the rights of holders of Preferred Stock
issued by the Company, if any, to share ratably in all assets remaining
available for distribution to them after payment of all prior legal obligations
of the Company.
The holders of Common Stock, as such, have no conversion, preemptive or
other subscription rights and there are no redemption provisions applicable to
the Common Stock. All the outstanding shares of Common Stock are, and the
shares of Common Stock to be issued on conversion of the Debentures offered
hereby will be, validly issued, fully paid and nonassessable.
The Common Stock does not have cumulative voting rights which means that
the holders of more than 50% of the Common Stock voting for the election of
directors can elect 100% of the directors of the Company if they choose to do
so. The Bylaws of the Company require that only a majority of the issued and
outstanding shares of the Company be represented to constitute a quorum and
transact business at a stockholders meeting.
Preferred Stock
The holders of Preferred Stock are entitled to two votes for each share
held of record. The holders of the Preferred Stock are entitled to receive a
12% annual dividend to be paid quarterly. In the event of a liquidation,
partial return of capital or dissolution of the Company, the holders of the
Preferred Stock are entitled to receive proceeds up to the amount of the par
value of the Preferred Stock.
The Company may, upon 15 days notice, redeem any or all of the Preferred
Stock outstanding, by paying the full par value and any accrued 12% dividend
legally due. The Company may subsequently reissue Preferred Stock from the
treasury as deemed appropriate by the Board of Directors.
At any time after issuance of any Preferred Stock, the holders of record
of the first 150 shares of Preferred Stock issued by the Company may elect to
convert the such shares of Preferred Stock into 66,600 shares of Common Stock in
exchange for each share of 150 shares of Preferred Stock surrendered to the
Company.
The holders of the Preferred Stock have no preemptive or other
subscription rights. To date, no Preferred Stock is outstanding, and the
Company has no current plans to issue any Preferred Stock.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock offered hereby has been verified for
the Company by Anania, Bandklayder & Blackwell, Attorneys at Law. The Company
will rely as to all matters of Florida law on Anania, Bandklayder & Blackwell.
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Item 6. Indemnification of Directors and Officers.
Florida Statute Section 607.0850 permits the following indemnification;
(1) A corporation shall have power to indemnify any person who was
or is a party to any proceeding (other than an action by, or in the right of,
the corporation), by reason of the fact that he 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,
partnership, joint venture, trust or other enterprise against liability incurred
in connection with such proceeding, including any appeal thereof, 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 proceeding by judgment, order, settlement, or 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 or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was
or is a party to any proceeding 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 a director,
officer, the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding in the judgment of the
board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including an appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to, the best interests of
the corporation, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(3) To the extent that a director, officer, employee, or agent or a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2),
unless pursuant to a determination by a court, shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsection (1) or subsection (2).
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(5) Evaluation of the reasonableness of expenses and authorization
of indemnification shall be made in the same manner as the determination that
indemnification is permissible.
(6) Expenses incurred by an officer or director in defending a civil
or criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is ultimately found not to
be entitled to indemnification by the corporation pursuant to this section.
Expenses incurred by other employees and agent may be paid in advance upon such
terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and a corporation may make any other
or further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested director, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions or omissions to act, were material to
the cause of action so adjudicated.
(8) A corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 or employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise 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 would have the power to
indemnify him against such liability.
In addition, the Companys Bylaws provide that the Board of Directors and
employees, individually and collectively, shall be covered on any liability
claims not covered by insurance policies and any future amounts falling within
the deductible portion of any future policy(s), and for any deductible portion
of any insurance policy and also on any other claim for which there is no
insurance coverage. Therefore, under and through the self-insurance program, or
by direct coverage or payment, the additional interest of all employees and the
Board of Directors of the Company, while acting in the scope of their duties
while performing or failing to perform any and all acts within or required by
such duty, is hereby assumed by the Company, which will include all legal and
defense costs and all settlements and court awards that the employees and/or
Board of Directors may be subject to for any act or claim that would be
constituted as a breach of a duty imposed on them or otherwise, or for any act
they perform in furtherance of the Companys business and functions. This
indemnity includes all damages, including those not covered because of any
deductible provision under any insurance policy.
Item 7. Exemption for Registration Claimed.
Not applicable.
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Item 8. Exhibits.
EXHIBITS DESCRIPTION
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5.1 Opinion of Anania, Bandklayder & Blackwell, counsel to the
Registrant, as to the legality of the Common Stock being
offered.
23.1 Consent of Angel E. Lana, P.A., independent auditor.
23.2 Consent of Anania, Bandklayder & Blackwell (incorporated in
Exhibit 5.1).
24 Power of Attorney (Included on page 8 of this registration
statement).
Item 9. Undertakings.
(a) 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 section10(a)(3) of
the Act;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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)(1)(ii) do
not apply if the registration statement is on FormS-3 or FormS-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 section13 or section15(d) of the Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose 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.
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(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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrants annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plans 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
related 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) Insofar as indemnification for liabilities arising under the Act 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 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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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 DALLAS, STATE OF TEXAS, ON THE 27TH DAY OF DECEMBER,
1996.
One Up Corporation
By: /s/ MICHAEL E. URA
--------------------------------
MICHAEL E. URA
Vice President
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS
RICHARD G. DEWS, MICHAEL E. URA AND H. WAYNE SANDERSON, AND EACH AND ANY OF
THEM, HIS OR HER TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, FOR HIM OR HER IN HIS OR HER NAME, PLACE AND
STEAD, IN ANY AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS (INCLUDING
POST-EFFECTIVE AMENDMENTS) TO THIS REGISTRATION STATEMENT, AND TO FILE THE SAME,
WITH ALL EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN- FACT AND
AGENTS, AND EACH AND ANY OF THEM, FULL POWER AND AUTHORITY TO DO AND PERFORM
EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE
PREMISES, AS FULLY AS TO ALL INTENTS AND PURPOSES AS HE OR SHE MIGHT OR COULD DO
IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT AND
AGENTS OR ALL OF THEM, OR THEIR OR HIS SUBSTITUTE OR SUBSTITUTES, MAY LAWFULLY
DO OR CAUSE TO BE DONE BY VIRTUE THEREOF.
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.
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SIGNATURE TITLE DATE
/s/ RICHARD G. DEWS December 27, 1996
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RICHARD G. DEWS President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ H. WAYNE SANDERSON December 27, 1996
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H. WAYNE SANDERSON Vice President, Secretary
and Director
(Principal Financial and
Accounting Officer)
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
5.1 Opinion of Anania, Bandklayder & Blackwell
23.1 Consent of Angel E. Lana, P.A., Independent Auditor
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EXHIBIT 5.1
OPINION OF COUNSEL TO REGISTRANT
[ANANIA, BANDKLAYDER & BLACKWELL LETTERHEAD]
December 17, 1996
Board of Directors
One Up Corporation
5 Campus Circle
Suite 100
Westlake, Texas 76262
RE: Employee Stock Purchase Plan
Gentlemen:
We have acted as special counsel to One Up Corporation, a Florida
corporation (the "Corporation"). We were retained by the Corporation on or
about November 7, 1996, for the limited purpose of reviewing the Employee Stock
Purchase Plan (the "Stock Purchase Plan") as adopted by the Corporation on or
about June 27, 1996, in connection with the issuance of 400,000 shares of common
stock pursuant to the Stock Purchase Plan.
In rendering the opinions set forth in this letter, we have reviewed the
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents:
a. The Stock Purchase Plan.
b. Such records of the Corporation, including its Articles
of Incorporation and amendments thereto, Bylaws, minutes of meetings of the
Board of Directors, other corporate or
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Board of Directors
One Up Corporation
December 17, 1996
Page 2
internal documents, correspondence and such other documents and materials as we
have deemed to be relevant for this purpose. In our examination of these
documents submitted to us as originals and authenticity of those documents
submitted to us as originals and the conformity to authentic original documents
of any documents submitted to us as certified, conformed or reproduction copies.
As to matters of fact which are material to this opinion, we have made such
inquiries of such officers and directors of the Corporation as we deemed
relevant and necessary and we have directly relied upon the certifications,
representations and warranties made by the officers and directors of the
Corporation.
Based upon the foregoing, it is our opinion that the 400,000 shares of
the Corporations common stock to be offered pursuant to the Stock Purchase Plan,
when issued and sold pursuant to the Stock Purchase Plan, will be legally
issued, fully paid and nonassessable.
GENERAL EXCEPTIONS
The opinion set forth is subject to the following further general
exceptions:
A. This opinion is as of the date hereof, and we undertake no
obligation to advise you of any change in any matter set forth herein.
B. This opinion is confined solely to the specific federal and
Florida matters discussed herein. We are members of the Bar of the State of
Florida and do not hold ourselves as being conversant with the laws of any
jurisdiction other than those of the State of Florida and the United States and
our opinion is so limited.
C. This opinion is confined solely for the benefit of the addressee
hereof, and is not to be furnished, quoted or referred to any other person,
entity or governmental agency without the prior written consent of Anania,
Bandklayder & Blackwell. We consent to the filing of this opinion as an exhibit
to the Registration Statement to be filed in connection with the Stock Purchase
Plan.
Very truly yours,
Anania, Bandklayder & Blackwell
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITOR
I consent to the incorporation by reference in this Registration Statement (Form
S-8 to be filed on or about December 2, 1996) pertaining to the One Up
Corporation Employee Stock Purchase Plan of my reports dated March 31, 1996,
with respect to the financial statements and schedules of One Up Corporation
(formerly New York Acquisitions, Inc.) included in its Annual Report (Form
10-KSB) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
/s/ ANGEL E. LANA
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Angel E. Lana, P.A.
Fort Lauderdale, Florida
December 24, 1996
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