-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C5GAH1iMthHiVa93ZLHP23/D9pAVMR5PTfPUoHgzMm0cTkdzudhyYCEYEnwdFHNT IEiOahc2q2IjtAaBW04tMw== 0000889812-97-001239.txt : 19970523 0000889812-97-001239.hdr.sgml : 19970523 ACCESSION NUMBER: 0000889812-97-001239 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970522 EFFECTIVENESS DATE: 19970522 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNITED PETROLEUM CORP CENTRAL INDEX KEY: 0000082925 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-AUTOMOTIVE REPAIR, SERVICES & PARKING [7500] IRS NUMBER: 133103494 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27627 FILM NUMBER: 97613017 BUSINESS ADDRESS: STREET 1: 4867 N BROADWAY STREET 2: PO BOX 18080 CITY: KNOXVILLE STATE: TN ZIP: 37928 BUSINESS PHONE: 6156880582 MAIL ADDRESS: STREET 1: 4867 N BROADWAY CITY: KNOXVILLE STATE: TN ZIP: 37918 S-8 1 REGISTRATION STATEMENT 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) 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. 2 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 3 24.1 Consent of Reel & Swafford, PLLC 24.2 Consent of Robson & Miller, LLP which is contained in Exhibit No. 5.2 - --------------- *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] 4 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 5 EX-4.8 2 1997 AMENDMENT TO UNITED PETROLEUM CORPORATION 1994 STOCK OPTION AND STOCK BONUS PLAN EXHIBIT 4.8 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. EX-4.9 3 AGREEMENT BETWEEN JOEL BROWNSTEIN AND UNITED PETROLEUM CORPORATION DATED APRIL 25, 1997 EXHIBIT 4.9 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 1 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; 2 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 3 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. 4 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. 5 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 EX-5.2 4 OPINION OF ROBSON & MILLER, LLP EXHIBIT 5.2 AND 24.2 [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 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 EX-24.1 5 CONSENT OF REEL & SWAFFORD, PLLC EXHIBIT 24.1 [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 -----END PRIVACY-ENHANCED MESSAGE-----