<PAGE> 1
As filed with the Securities and Exchange Commission on July 3, 1997
SEC File No. 2-22549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
UPLAND ENERGY CORPORATION
- ----------------------------
(Exact name of registrant as specified in its charter)
UTAH 87-0430780
- ------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
175 South Main Street, Suite 1423, Salt Lake City, UT 84111
- ----------------------------------------------------- ---------
(Address of Principal Executive Offices) (Zip Code)
1996 Non-Qualified Stock Option Plan
Employment Agreements
- ------------------------------------
(Full title of the plan)
John W. Hobbs, 175 South Main Street, Suite 1423, Salt Lake City, UT 84111
--------------------------------------------------------------------------
(Name, address, including zip code of agent for service)
Telephone number, including area code, of agent for service: (801) 537-5010
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered (2) Share (1) Price Fee
- ---------- ---------- ---------- ---------- ------------
<C> <C> <C> <C> <C>
Common Stock,
$0.001 par
value 910,000 $4.50 $4,095,000 $1,412.00
</TABLE>
(1) Bona fide estimate of maximum offering price solely for the purpose of
calculating the registration fee, based on the closing price of the
Registrant's common stock on July 1, 1997, as reported on the National
Association of Security Dealers Electronic Bulletin Board.
(2) Pursuant to rule 416, there are also being registered such additional
securities as may become issuable as a result of antidilution provisions of
options granted pursuant to such plans.
<PAGE> 2
UPLAND ENERGY CORPORATION
Cross Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of part I of form S-8 and the section 10(a)
prospectus which will be delivered to each employee, director or consultant
who participates in the stock option plan.
Registration Statement Item Numbers and Headings Prospects Headings
- ------------------------------------------------ ------------------
1) Plan Information Section 10(a) Prospectus
2) Registration Information and Employee
Plan Annual Information Section 10(a) Prospectus
Explanatory Note
In accordance with the instructional note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information
specified by Part I of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of Common Stock of Upland Energy Corporation
(the "Company") receivable on exercise of unexercised stock options. The
Prospectus filed as part of this Registration Statement has been prepared in
accordance with the requirements of Form S-3, part I, and may be used for
reoffering and resales of the unregistered shares of Common Stock previously
acquired for employment and consulting services rendered to the Company. This
Registration Statement relates to 450,000 shares of Common Stock issuable on
exercise of unexercised stock options under the Company's 1996 non-qualified
stock option plan and 460,000 shares of Common Stock issued to two officers
and directors of the Company under the terms of their employment agreement and
related stock options.
PAGE
<PAGE> 3
PROSPECTUS
UPLAND ENERGY CORPORATION
460,000 Shares of Common Stock
The shares of Upland Energy Corporation's common stock, $0.001 par value
(the "Common Stock"), offered hereby are shares which have previously been
issued by Upland Energy Corporation (the "Company") to two officers listed
under "Selling Stockholders" herein (the "Selling Stockholders"). The
Company will not receive any of the proceeds from the sale of the shares of
Common Stock. Some or all of the shares of Common Stock may be offered for
sale from time to time by the Selling Stockholders at such prices and upon
such terms as may then be obtainable in negotiated transaction or otherwise,
or by underwriters pursuant to an underwriting agreement in customary form,
or in a combination of any such methods of sale. The Selling Stockholders and
any broker-dealers (including underwriters who may participate in a sale of
the shares of Common Stock) may be deemed to be statutory underwriters within
the meaning of the Securities Act of 1933, as amended (the "Securities Act"),
and the commissions paid or discounts or concessions allowed to any of such
broker-dealers (including underwriters) by any person, as well as any profits
received on the resale of the shares of Common Stock if any of such
broker-dealers (including underwriters who should purchase any shares of
Common Stock as a principal), may be deemed to be underwriting discounts and
commissions under the Securities Act. All discounts, commissions or fees
incurred in connection with the sale of the shares of Common Stock offered
hereby will be paid by the Selling Stockholders or by the purchasers of the
shares of Common Stock, except that the expenses of preparing and filing this
Registration Statement with the Securities and Exchange Commission (the
"Commission"), and of registering or qualifying the shares of Common Stock
under the blue sky laws of any jurisdiction necessary to permit the
distributions described in the Registration Statement, will be paid by the
Company.
The Common Stock is listed on the National Association of Security
Dealers Electronic Bulletin Board under the Symbol "UPLC." On July 1, 1997,
the closing sale price for the Common Stock was $4.50 per share.
PURCHASE OF THESE SECURITIES INVOLVES SUBSTANTIAL RISKS. SEE "RISK FACTORS"
- ------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
- ------------------------------------------------------------------------------
The date of this Prospectus is July 2, 1997PAGE
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
hereby incorporated by reference in this Prospectus:
1) The Company's Form 10SB and Form 10SB/A filed with the Commission on
April 29, 1997, and June 26, 1997.
2) All reports filed by the Company with the Commission pursuant to
section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since June 30, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to
the filing of any post-effective amendment which indicates that all securities
covered by this Prospectus have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
No person has been authorized in connection with any offering made hereby
to give any information or to make any representation not contained in this
Prospectus, and, if given or made, such information representation must not be
relied upon as having been authorized by the Company or any Selling
Stockholders. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any security other than the shares of Common
Stock offered by this Prospectus, nor shall there be any sale of the shares of
Common Stock by any person in any jurisdiction in which it is unlawful for
such person to make such an offer, solicitation or sale. Neither the delivery
of this Prospectus nor any sale made hereunder shall under any circumstances
create an implication that the information contained herein is correct as of
any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission ").
Such reports, proxy statements and other information can be inspected and
copied at the Public Reference Room of the Commission at 450 Fifth Street,
N.W., Washington, D. C. 20549 and at the Commission's regional offices at
Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago,
Illinois 60604, and at 410 Seventeenth Street, Suite 700, Denver, Colorado
80202. Copies of such materials can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates.
The Company will furnish without charge to each person, including
beneficial owners, to whom this prospectus is delivered, on the written or
oral request of such person, a copy of any or all of the documents
incorporated in this prospectus by reference, other than exhibits to such
documents. Requests should be directed to John W. Hobbs 175 South Main
Street, Suite 1423, Salt Lake City, Utah 84111; Tele: (801) 537-5010.
PAGE
<PAGE> 5
TABLE OF CONTENTS
Page
----
Incorporation of Certain Documents by Reference 3
Risk Factors 3
Selling Stockholders 5
Plan of Distribution 6
Description of Securities 7
Experts 8
RISK FACTORS
The shares of Common Stock offered hereby are speculative and involve a
high degree of risk. In addition, to the other information included or
incorporated by reference in this Prospectus, the following factors, among
others, should be considered carefully in the evaluation of the Company and
its business before purchasing any shares of the Common Stock offered hereby.
New Venture
Although the Company has been in the oil exploration business since 1993
through its subsidiary GS&C, Inc., the Company has not been profitable and
changed its exploration and drilling focus in 1996 to focus on the Hittle
Field in Kansas. The Hittle Field is relatively small for the oil and gas
industry and, at the present time, does not have any producing wells of the
Company on it. Accordingly, there is substantial risk as to the potential
success of the Company and of its drilling efforts on the Hittle Field.
Dependence on Management
The Company's future success will be dependent on the Company's current
management, particularly Felix Ascanio. Mr. Ascanio has been responsible for
the Company's acquisition of the Hittle Field and performs most of the
scientific study of the fields, the cites to drill and the depth of the
drilling. Mr. Ascanio is currently in the United States on a visa with no
assurance that it will be renewed when it expires in 1998. The Company does
not anticipate purchasing key-man life insurance on its existing management.
Accordingly, persons considering the purchase of the securities offered hereby
should consider carefully the information contained herein concerning the
Company's management.
No Foreseeable Dividends
The Company has not paid dividend on its Common Stock in the past and may
not pay dividends even if it is profitable in the future. An investment in
the Company should only be viewed as a long term investment for those who have
no need for current liquidity.
PAGE
<PAGE> 6
Possible Need for Additional Financing
The Company has limited operating capital available for it to complete
its current drilling efforts and to further explore and drill for oil or
acquire other oil and gas leases. Therefore, the ultimate success of the
Company may depend on its ability to raise additional capital. There is no
assurance that any additional funds will be available from any source or, if
available, that the terms would be acceptable to the Company. If adequate
funds are not available, it will be necessary for the Company to limit
operations to those that can be financed with its limited capital.
Concentration of Activities in Hittle Field
Due to the Company's limited resources, the Company's primary focus will
be on the Hittle Field in Kansas for future exploration. If the Hittle Field
should prove to be unproductive, the Company would be left only with the
McLouth Field in Kansas which is not producing extensive revenue.
Speculative Nature of Oil and Gas Industry
Exploration for oil is a highly speculative business. There is no way to
know in advance of drilling and testing whether any prospect will yield oil in
sufficient quantities to be economically feasible. The completion of a well
for production or the initiation of production in paying quantities does not
necessarily mean that the well will be economic because it may not produce
sufficient revenues to recover related costs and generate a financial return
to the Company. Additionally, the long term production of a well may be an
uncertainty.
Dependence on Oil Prices
The Company's oil exploration and production activities are dependent on
the prevailing price for oil, which is beyond the Company's control or
influence, and there is no assurance that the Company's wells can be produced
at levels in excess of related production costs. Additionally, if prices
decline in the future, wells which are currently profitable or which were
drilled and placed on line based on current prices may become unprofitable.
Risks of Adverse Weather
The Company's activities are subject to periodic interruptions due to
weather conditions, which may be quite severe at various times of the year.
Periods of heavy precipitation and extreme cold whether make travel to
exploration or drilling locations difficult and/or impossible and may
interrupt drilling, pumping, and/or production activities or increase
operating costs.
Competition
The acquisition and exploration of oil and gas prospects are highly
competitive. Many of the Company's current and potential competitors engaged
in oil exploration in the region of interest for the Company have greater
financial resources, broader exploration programs, and a greater number of
managerial and technical personnel. Because the Company's resources will be
limited even on successful completion of this offering, there can be no
assurance that the Company will be able to compete effectively in the
exploration of oil.
<PAGE> 7
Environmental and Other Governmental Regulation
Oil and gas operations are subject to comprehensive federal, state, and
local laws and regulations controlling the exploration for and sale of oil and
the possible effects of such activities on the environment. To date, the
Company has not been required to expend significant resources in order to
satisfy applicable environmental laws and regulations respecting its own
activities; however, present as well as future legislation and regulations
could cause additional expenditures, restrictions, and delays in the Company's
business, the extent of which cannot be predicted, and may require the Company
to curtail specific activities in some circumstances or subject the Company to
various governmental controls. Because federal energy policies are subject to
constant revisions, no prediction can be made as to the ultimate effect of
such governmental policies and controls on the Company.
Issuance of Additional Securities
The Company has authorized 50,000,000 shares of Common Stock of which as
of July 3, 1997, only 3,635,378 shares had been issued, with 950,000 reserved
for issuance on the exercise of options and warrants. The Company's board of
directors also has authority, without action or vote of the shareholder, to
issue all or part of the authorized but unissued shares. Any such issuance
will dilute the percentage ownership interest of shareholders and may further
dilute the book value of the Common Stock.
SELLING STOCKHOLDERS
The Selling Stockholders are offering shares of the Company's Common
Stock which have been previously issued by the Company to such persons as
compensation for employment or consulting services rendered to the Company.
The following table sets forth certain information with respect to the Selling
Stockholders as of July 2, 1997:
<TABLE>
<CAPTION>
Number of Number
of Percent of Shares
Shares of Shares
Beneficially Beneficially Owned
Position with Common Stock Number of Owned
Upon Completion Upon Completion of
Name of Shareholder the Company Beneficially Owned Shares Offered of the
Offering (2) the Offering (3)
- ------------------- --------------- ------------------ ----------------
- --------------------- ------------------
<S> <C> <C> <C>
<C> <C>
Felix Ascanio President and
Director 327,500 300,000
27,500 0.756
John W. Hobbs Secretary/
Treasurer and
Director 202,900 150,000
52,900 1.455
</TABLE>
(1) Includes shares of Common Stock owned by the Selling Stockholder and
shares of Common Stock which the Selling Stockholder has the right to acquire,
through the exercise of options, if any, within 60 days after the date of this
Prospectus.
(2) Assumes all shares registered pursuant hereto will be sold.
(3) The number of shares outstanding as of the date of July 1, 1997 was,
3,635,378.
PAGE
<PAGE> 8
PLAN OF DISTRIBUTION
(Selling Shareholders)
The Company has been advised by the Selling Stockholders that they intend
to make private sales of their Common Stock directly or through a broker or
brokers, who may act as agent or as principal. The Selling Stockholders may
also sell all or a portion of the shares of Common Stock offered hereby on the
over-the-counter market, or otherwise at prices and at terms then prevailing
or at prices related to the then current market price, or in negotiated
transactions. In connection with any sales, the Selling Stockholders and any
brokers participating in such sales may be deemed to be underwriters within
the meaning of the Securities Act. The Company will receive no part of the
proceeds of sales made hereunder.
Any broker-dealer participating in such transactions as agent may receive
commissions from the Selling Stockholders (and, if they act as agent for the
purchaser of such shares of Common Stock, from such purchaser). Usual and
customary brokerage fees will be paid by the Selling Stockholders.
Broker-dealers may agree with the Selling Stockholders to sell a specified
number of shares at a stipulated price per share, and, to the extent such
broker-dealer is unable to do so acting as agent for the Selling Stockholders,
to purchase as principal any unsold shares at the price required to fulfill
the broker-dealer commitment to the Selling Stockholders. Broker-dealers who
acquire shares as principal may thereafter resell such shares from time to
time in transactions (which may involve crosses and block transactions and
which may involve sales to and through other broker-dealers, including
transactions of the nature described above) on the over-the-counter market, in
negotiated transactions or otherwise at market prices prevailing at the time
of sale or at negotiated prices, and in connection with such resales may
receive from the purchasers of such shares commissions computed as described
above.
The Company has advised the Selling Stockholders that anti-manipulative
Rules 10b-2, 10b-6 and 10b-7 under the Exchange Act, may apply to their sales
in the market, and has furnished each Selling Stockholder with a copy of these
Rules and has informed them of the need for delivery of copies of this
Prospectus. The Selling Stockholders may indemnify any broker-dealer that
participated in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act. Any
commissions paid or any discounts or concessions allowed to any such
broker-dealers, and any profits received on the resale of such shares, may be
deemed to be underwriting discounts and commissions under the Securities Act
if any such broker-dealers purchase shares as principal.
As the Selling Stockholders are affiliates of the Company, the Selling
Stockholders will be subject to the volume limitations on sales found in Rule
144(e) promulgated under the Securities Act. Rule 144(e) specifically limits
sales during any three month period to the greater of (i) one percent of the
outstanding securities of the Company; (ii) the average weekly reported volume
of trading in the Common Stock on a national securities exchanges and/or as
reported through the automated quotation system of a registered securities
association during the four calendar weeks preceding the filing of notice as
required under Rule 144(h) or the order executing the transaction; or (iii)
the average weekly volume of trading in the Common Stock reported through the
consolidated transaction reporting system under Rule 11Aa3-1 promulgated under
the Exchange Act.
There can be no assurance that any of the Selling Stockholders will sell
any or all of the shares of Common Stock offered by them hereunder.
<PAGE> 9
DESCRIPTION OF SECURITIES
General
The Company is authorized to issued fifty million shares of capital
stock, par value $0.001 per share designated as Common Stock. There are
3,135,378 shares of Common Stock currently issued and outstanding as of the
date of this Summary. Additionally, the Company has 550,000 Existing Warrants
outstanding to purchase a like number of shares of Common Stock at an exercise
price of $1.50 per share.
Common Stock
The holders of Common Stock are entitled to one vote per share on each
matter submitted to a vote at any meeting of shareholders. Shares of Common
Stock do not carry cumulative voting rights and, therefore, a majority of the
shares of outstanding Common Stock will be able to elect the entire board of
directors and, if they do so, minority shareholders would not be able to elect
any persons to the board of directors. The Company's bylaws provide that a
majority of the issued and outstanding shares of the Company constitutes a
quorum for shareholders' meetings, except with respect to certain matters for
which a greater percentage quorum is required by statute or the bylaws.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock or other securities. The Common Stock is
not subject to redemption and carries no subscription or conversion rights.
In the event of liquidation of the Company, the shares of Common Stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities.
Holders of Common Stock are entitled to receive such dividends as the
board of directors may from time to time declare out of funds legally
available for the payment of dividends. The Company seeks growth and
expansion of its business through the reinvestment of profits, if any, and
does not anticipate that it will pay dividends in the foreseeable future
Warrants
The Company has 275,000 Warrants outstanding. No trading market
currently exist for the Warrants, and it is unlikely one will ever develop.
Each Warrant entitles the holder thereof to purchase one share of the
Company's Common Stock, at an exercise price of $2.00 per share at any time
within five years from the date of issuance of the Warrant (the "Warrant
Exercise Period"). The holder of a Warrant will not posses any rights as a
shareholder of the Company until exercise of the Warrant and full payment of
the exercise price.
Shares of Common Stock issuable on exercise of the Warrants will be
"restricted securities" as that term is defined under the Securities Act, and
consequently, will be subject to the restrictions on transfer set forth in the
Securities Act and, applicable regulations unless an effective registration
statement is in effect at the time of exercise of the Warrants. Further
restrictions on transfer may be imposed by state securities statues.
Therefore, the securities would have to be held indefinitely, unless
subsequently registered or qualified under applicable federal and state
securities laws or sold in a transaction exempt from such registration and
qualification requirements.
<PAGE> 10
The Warrants contain provisions that protect the holders thereof against
dilution by adjustment of the number of shares of Common Stock purchasable on
exercise of the Warrants in certain events. In the event the number of shares
Common Stock purchasable is increased through the operation of the
antidilution provisions, the exercise price will be reduced proportionately.
Conversely, if the number of shares of Common Stock purchasable is decreased,
the exercise price will be increased proportionately.
The Warrants contain registration provisions providing that shares of
Common Stock issuable on exercise of the Warrants must be included in any
registration statement that the Company files during the exercise period. The
cost of registration will be borne by the Company.
EXPERTS
The audited financial statements of the Company which are incorporated
into this Prospectus, to the extent and for the periods indicated in their
reports, have been examined by Pritchett, Siler & Hardy, P.C., independent
public accountant, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in accounting and auditing in giving
said reports.
PAGE
<PAGE> 11
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
hereby incorporated by reference in this Prospectus:
a) The Company's Form 10SB and Form 10SB/A filed with the Commission on
April 29, 1997, and June 26, 1997, respectively.
b) All reports filed by the Company with the Commission pursuant to
section 13(a) or 15(d) of the Exchange Act since June 29, 1997, the effective
date of the Company's Form 10SB.
c) The description of the Company's Common Stock contained in the
Company's registration statement filed under the Securities Exchange Act of
1934, as amended, including any amendments or reports filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to
the filing of any post-effective amendment which indicates that all securities
covered by this Prospectus have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
See Item 3, subparagraph c., whereby the description of the Company's
Common Stock is incorporated by reference from the Company's registration
statement filed under the Securities Exchange Act of 1934, as amended,
including any amendments or reports filed for the purpose of updating such
description.
Registrar and Transfer Agent
The registrar and transfer agent of the Company's securities is Colonial
Stock Transfer, 440 South 400 East, Suite 1, Salt Lake City, Utah 84111,
telephone (801) 355-5740. PAGE
<PAGE> 12
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
No expert or counsel for the Company named in this registration statement
as having prepared or certified any part hereof, or as giving an opinion as to
the validity of the securities being registered was employed on a contingency
basis, or has or is to receive, in connection with the offering, a substantial
interest in the Company or its subsidiaries. In addition no such expert or
counsel is connected with the Company or its subsidiaries as a promoter,
managing underwriter, voting trustee, director, officer, or employee. Mr.
Victor D. Schwarz, corporate counsel, has received options to acquire up to
45,000 shares of the Company for prior and continuing serves to the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following is a brief summary of certain indemnification provisions of
the Company's articles of incorporation and the Utah Revised Business
Corporation Act. This summary is qualified in its entirety by reference to
the text thereof.
Section 16-10a-901 through 909 of the Utah Revised Business Corporation
Act, as amended (the "Corporation Act"), permits a Utah corporation to
indemnify its directors and officers for certain of their acts. More
specifically, Sections 16-10a-902 and 16-10a-907 of the Corporation Act grant
authority to any corporation to indemnify directors and officers against any
judgments, fines, amounts paid in settlement and reasonable expenses,
including attorney's fees, by reason of his or her having been a corporate
director or officer. Such provision is limited to instances where the
director or officer acted in good faith and in a manner he or she reasonable
believed to be in or not opposed to the best interests of the corporation, or,
in criminal proceedings, he or she had no reasonable cause to believe his or
her conduct was unlawful. Such sections confer on the director or officer an
absolute right to indemnification for expenses, including attorney's fees,
actually and reasonably incurred by him or her to the extent he or she is
successful on the merits or otherwise defense of any claim, issue, or matter.
The corporation may not indemnify a director if the director is adjudged
liable to the corporation or deemed to have derived an improper personal
benefit in an action in which the director is adjudged liable. Section 16
10a-906 of the Corporation Act expressly makes indemnification contingent upon
a determination that indemnification is proper in the circumstances. Such
determination must be made by the board of directors acting through a quorum
of disinterested directors, or by the board of directors acting on the advice
of independent legal counsel, or by the shareholders. Further, Section 16-10a
904 of the Corporation Act permits a corporation to pay attorney's fees and
other litigation expenses on behalf of a director or office in advance of the
final disposition of the action upon receipt of an undertaking by or on behalf
of such director or officer to repay such expenses to the corporation if its
is ultimately determined that he or she is not entitled to be indemnified by
the corporation or to the extent the expenses so advanced by the corporation
exceed the indemnification to which he or she is entitled. Such
indemnification provisions do not exclude other indemnification rights to
which a director or officer may be entitled under the corporation's
certificate or articles of incorporation, bylaws, an agreement, a vote of
shareholders, or otherwise. The corporation may also purchase and maintain
insurance to provide indemnification.
The foregoing discussion of indemnification merely summarizes certain
aspects of the indemnification provisions of the Corporation Act and is
limited by reference to the above discussed section of the Corporation Act.
<PAGE> 13
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to members of the board of directors, officers,
employees, 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 in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
The previously issued securities being registered for reoffer and resale
pursuant to the Prospectus filed as part of this Registration Statement were
issued by the Company without registration in reliance upon the exemption
provided by Section 4(2) of the Securities Act, since no public offering was
involved. There was no solicitation, general or otherwise, in regard to the
issuance of the securities, and no underwriters were involved in the foregoing
sales of securities. At the time such securities were issued, the recipients
had knowledge of and access to the Company, its records, and operations.
ITEM 8. EXHIBITS
Exhibits.
Copies of the following documents are included as exhibits to this
registration statement pursuant to item 601 of regulation S-K.
SEC
Exhibit Reference
No. No. Description Location
- ------- --------- ----------- --------
3.01 3 Articles of Incorporation Incorporated
by Reference*
3.02 3 Bylaws Incorporated
by Reference*
4.01 4 Specimen certificate
for Common Stock Incorporated
by Reference*
5.01 5 & 23 Letter opinion, including consent
of Victor D. Schwarz, L.L.C.
regarding legality of Common Stock
to be issued pursuant to options
granted under the Plan. This Filing
23.01 23 Consent of Pritchett, Siler & Hardy,
P.C., independent certified
accountants, for Upland Energy
Corporation for the dates and years
ended December 31, 1996 and 1995 This Filing
24.01 24 Powers of Attorney See Signature
Page
99.01 99 1996 Non-Qualified Stock Option Plan
and Amendment Incorporated
by Reference*
99.02 99 Employment Agreement of Felix Ascanio
dated October 1, 1996, and related
Stock Option dated September 1, 1996 Incorporated
by Reference*
* Incorporated by reference from the Company's registration statement on
form 10SB filed with the Commission, SEC file No. 0-22497.
<PAGE> 14
ITEM 9. UNDERTAKINGS
REGULATION S-K
Post-Effective Amendments - Item 512(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, 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.
(2) That, for the purpose of determining any liability under the
Securities 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.
(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.
Filings Incorporating Subsequent Exchange Act Documents by Reference - Item
512(b)
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended , each
filing of the Registrant's annual report pursuant to section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(a) of the
Securities Exchange Act of 1934) 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.
Filing of Registration Statement on Form S-8 - Item 512(h)
Insofar as indemnification for liabilities arising under the Securities
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 Commission such indemnification
is against public policy as expressed in the Securities 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.
<PAGE> 15
SIGNATURES
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 Lawrence, State of Kansas, on the
2nd day of July, 1997.
UPLAND ENERGY CORPORATION
By /S/ Felix Ascanio, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary V. Heesch, with power of substitution, as
his attorney-in-fact for him, in all capacities, to sign any amendments to
this registration statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitutes may 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 and on the date indicated.
Signature Title Date
- --------- ----- ----
/S/ Felix Ascanio Chairman of the Board, July 2, 1997
Directors and President
/S/ John W. Hobbs Director, Secretary/
Treasurer and Chief
Financial Officer July 2, 1997
/S/ Lee Jackson Director July 2,
1997
/S/ Ervin Brown Director July 2, 1997
<PAGE>
EXHIBIT NO. 5 & 23
VICTOR D. SCHWARZ, LLC
3090 East 3300 South, Suite 400
Salt Lake City, UT 84109
July 2, 1997
Board of Directors
Upland Energy Corporation
175 South Main Street, Suite 1423
Salt Lake City, Utah 84111
Re: Upland Energy Corporation
Registration Statement on Form S-8
Gentlemen:
I have been retained by Upland Energy Corporation (the "Company") in
connection with the registration statement (the "Registration Statement") on
Form S-8 to be filed by the Company with the Securities and Exchange
Commission relating to the securities of the Company. You have requested that
I render my opinion as to whether or not the securities proposed to be
issued on the terms set forth in the Registration Statement will be validly
issued, fully paid, and nonassessable.
In connection with this request, I have examined the following:
1. Articles of Incorporation of the Company, and amendments thereto;
2. Bylaws of the Company;
3. Unanimous consent resolutions of the Company's board of directors;
4. The Registration Statement; and
5. The Company's 1996 Stock Option Plan and Employment Agreements
I have examined such other corporate records and documents and have
made such other examinations as I have deemed relevant.
Based on the above examination, I am of the opinion that the
securities of the Company to be issued pursuant to the Registration Statement
are validly authorized and, when issued in accordance with the terms set forth
in the Registration Statement, will be validly issued, fully paid, and
nonassessable under corporate laws of the state of Utah.
This opinion is limited in scope to the shares to be issued pursuant to
the Registration Statement and does not cover subsequent issuance of shares to
be made in the future. Such transactions are required to be included in
either a new registration statement or a post-effective amendment to the
Registration Statement, including updated opinions concerning the validity of
issuance of such shares.
Further, I consent to the name, Victor D. Schwarz, LLC, being included
in the Registration Statement as having rendered the foregoing opinion and as
having represented the Company in connection with the Registration Statement.
Sincerely,
Victor D. Schwarz, LLC
/S/Victor D. Schwarz
<PAGE>
EXHIBIT NO. 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Upland Energy Corporation on Form S-8 of our report dated
February 17, 1997 accompanying the financial statements as of December 31,
1996 and 1995 of Upland Energy Corporation, and to the reference to us under
the heading "Experts" in the Prospectus, which is a part of the Registration
Statement.
/S/ PRITCHETT, SILER & HARDY, P.C.
Salt Lake City, Utah
July 2, 1997
