SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________________
NEXIA HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Nevada 84-1062062
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
268 West 400 South, Suite 300, Salt Lake City, Utah 84101
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(Address of principal executive offices)
The 2003 Benefit Plan of Nexia Holdings, Inc.
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(Full title of the plan)
Richard D. Surber, 268 West 400 South, Suite 300, Salt Lake City, Utah 84101
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(Name, address, including zip code, of agent for service)
Telephone number for Issuer: (801) 575-8073
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amounts to Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price Fee
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Common Stock,
0.001 par value 20,000,000 $0.005 $100,000 $25
==============================================================================
(1) Bona fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933,
based on the average bid and asked price of the registrant's common
stock as of September 22, 2003, a date within five business days prior
to the date of filing of this registration statement.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein.
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2003 Benefit Plan of Nexia Holdings, Inc.
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 that will be delivered to each employee, consultant, or
director who participates in the Plan.
Registration Statement Item Numbers and Headings Prospectus Heading
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1. Plan Information Section 10(a) Prospectus
2. Registrant Information and Section 10(a) Prospectus
Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Nexia Holdings, Inc., a Nevada
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2002.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year ended December 31, 2002.
Prior to the filing, if any, of a post-effective amendment that
indicates that all securities covered by this Registration Statement have been
sold or that de-registers all such securities then remaining unsold, all
reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act 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
The common stock of the Company being registered pursuant to this
Registration Statement is part of a class of securities registered under
Section 12 of the Exchange Act. The securities are described in the Form
S-18 Registration Statement filed on September 16, 1988 under the Securities
Act of 1933, as amended (the "Securities Act"), including any amendment or
report filed for the purpose of updating such description.
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Item 5. Interests of Named Experts and Counsel
No expert is named as preparing or certifying all or part of the
registration statement to which this prospectus pertains, and no counsel for
the Company who is named in this prospectus as having given an opinion on the
validity of the securities being offered hereby was hired on a contingent
basis or has or is to receive, in connection with this offering, a substantial
interest, direct or indirect, in the Company.
Item 6. Indemnification of Directors and Officers
Sections 78.7502 and 78.751 of the Nevada Business Corporation Act, as
amended, provide for the indemnification of the Company's officers, directors,
employees and agents under certain circumstances as follows:
NRS 78.7502 DISCRETIONARY AND MANDATORY INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS: GENERAL PROVISIONS.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except 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 expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with the action, suit or proceeding if he acted in good faith
and in a manner which 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 action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does 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, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit 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, 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 expenses,
including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which
such a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit
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or proceeding referred to in subsections 1 and 2, or in defense of any claim,
issue or matter therein, the corporation shall indemnify him against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
NRS 78.751 AUTHORIZATION REQUIRED FOR DISCRETIONARY INDEMNIFICATION;
ADVANCEMENT OF EXPENSES; LIMITATION ON INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
1. Any discretionary indemnification under NRS 78.7502 unless ordered by a
court or advanced pursuant to subsection 2, may 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. The determination must be made: (a) By the stockholders; (b) By
the board of directors by majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding; (c) If a majority vote
of a quorum consisting of directors who were not parties to the action, suit
or proceeding so orders, by independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the action,
suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
2. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by
the corporation as they are incurred and in advance of the final disposition
of the action, suit or proceeding, upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do not
affect any rights to advancement of expenses to which corporate personnel
other than directors or officers may be entitled under any contract or
otherwise by law.
3. The indemnification and advancement of expenses authorized in or ordered by
a court pursuant to this section: (a) Does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant to NRS
78.7502 or for the advancement of expenses made pursuant to subsection 2, may
not be made to or on behalf of any director or officer if a final adjudication
establishes that his acts or omissions involved intentional misconduct, fraud
or a knowing violation of the law and was material to the cause of action. (b)
Continues for a person who has ceased to be a director, officer, employee or
agent and inures to the benefit of the heirs, executors and administrators of
such a person.
Articles of Incorporation.
The Company's Amended and Restated Articles of Incorporation provide that the
personal liability of a director or officer of the Company to the Company or
its stockholders for monetary damages for breach of fiduciary duty, for any
action taken or for any failure to take any action, as a director or officer,
shall be eliminated to the fullest extent permissible under Nevada law, except
for (a) acts or omissions which involve intentional misconduct, fraud,
infliction of harm on the Company or its stockholders or a knowing violation
of criminal law, (b) the payment of distributions in violation of Section
78.300 of the Nevada Revised Statutes, or (c) the amount of a financial
benefit received by a director to which he is not entitled.
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Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company, the
Company 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
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
proceedings) is asserted by such director, officer, or controlling person in
connection with any securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to 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 issues.
Item 7. Exemption from Registration Claimed
No restricted securities are being re-offered or resold pursuant to this
registration statement.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the
Exhibit Index, which is found on page 8.
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
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) To treat, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment as 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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(d) of the
Exchange Act) that is incorporated by reference in this 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.
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(c) 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 Securities and Exchange
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
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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, on September 23, 2003.
Nexia Holdings, Inc.
By: /s/ Richard D. Surber
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Richard D. Surber, as 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 date indicated.
Signature Title Date
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/s/ Richard D. Surber Director. September 23, 2003
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Richard D. Surber
/s/ Gerald Einhorn Director. September 23, 2003
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Gerald Einhorn
/s/ John Fry, Jr. Director. September 23, 2003
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John Fry, Jr.
/s/ Adrienne Bernstein Director. September 23, 2003
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Adrienne Bernstein
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Nexia Holdings, Inc.
(a Nevada corporation)
___________________
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INDEX TO EXHIBITS
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Exhibits SEC Ref. No. Description of Exhibit Page
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A 4 2003 Stock Benefit Plan of the Company 9
B 5, 23(b) Opinion and consent of Counsel with 13
respect to the legality of the issuance
of securities being issued
C 23(a) Consents of Accountants 16
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