SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NUMBER TWO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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 Amended 2004 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
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CALCULATION OF REGISTRATION FEE
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Amounts to Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Per Aggregate Offering Registration
be Registered Registered Share(1) Price Fee
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Common Stock, 0.001 par 500,000,000 $ 0.0017 $ 850,000 $ 212.50
value
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(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 May 17, 2004, 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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Post Effective Amendment to the
2004 Benefit Plan of Nexia Holdings, Inc.
This Post Effective Amendment No. Two is being filed to reflect that the
Board of Directors of Nexia Holdings, Inc. (the "Company") has amended The 2004
Benefit Plan of Nexia Holdings, Inc. as filed by the Company in an S-8 filed on
January 12, 2004, file no. 333-111864, which is incorporated herein by
reference. This amendment will increase the number of shares to be included in
the plan from one hundred fifty million (150,000,000) to six hundred fifty
million (650,000,000). The amendment to the 2004 Benefit Plan of Nexia
Holdings, Inc. is filed as Exhibit "A" hereto. The additional five hundred
million (500,000,000) shares are being registered hereby.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the
Exhibit Index, which is found on page 4.
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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 May 18, 2004.
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 May 18, 2004
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Richard D. Surber
/s/ Gerald Einhorn Director May 18, 2004
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Gerald Einhorn
/s/ John Fry, Jr. Director May 18, 2004
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John Fry, Jr.
/s/ Adrienne Bernstein Director May 18, 2004
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Adrienne Bernstein
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INDEX TO EXHIBITS
Page
Exhibits SEC Ref. No. Description of Exhibit
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A 23(a) Consent of Accountant 5
B 4 Amendment to 2004 Benefit Plan of Nexia 6
Holdings, Inc.
C 5, 23(b) Opinion and consent of Counsel with 7
respect to the legality of the issuance
of securities being issued
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Exhibit A.
LETTERHEAD OF
HJ & ASSOCIATES, L.L.C.
CERTIFIED PUBLIC ACCOUNTANTS AND CONSULTANTS
50 South Main Street, Suite 1450
Salt Lake City, Utah 84144
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors and Shareholders of
Nexia Holdings, Inc.
Salt Lake City, Utah
We hereby consent to the incorporation by reference in this Registration
Statement of Nexia Holdings, Inc. on Form S-8, of our report dated May 10, 2004,
(which includes an emphasis paragraph relating to an uncertainty as to the
Company's ability to continue as a going concern), included in and incorporated
by reference in the Annual Report on Form 10-KSB of Nexia Holdings, Inc. for the
year ended December 31, 2003 and to all references to our firm included in this
Registration Statement.
/s/ Michael Hess
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HJ & Associates, LLC
Salt Lake City, Utah
May 21, 2004
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Exhibit B.
POST EFFECTIVE AMENDMENT TO THE
THE 2004 BENEFIT PLAN OF NEXIA HOLDINGS, INC.
Effective this 18th day of May, 2004, Paragraphs 3 and 13 of the 2004
Benefit Plan of Nexia Holdings, Inc. shall be and hereby are amended to read as
follows:
3. Shares of Stock Subject to this Plan. A total of Six Hundred Fifty million
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(650,000,000) shares of Stock may be subject to, or issued pursuant to, Benefits
granted under this Plan. If any right to acquire Stock granted under this Plan
is exercised by the delivery of shares of Stock or the relinquishment of rights
to shares of Stock, only the net shares of Stock issued (the shares of stock
issued less the shares of Stock surrendered) shall count against the total
number of shares reserved for issuance under the terms of this Plan.
13. Expiration and Termination of this Plan. This Plan may be abandoned or
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terminated at any time by the Plan Administrators except with respect to any
Options then outstanding under this Plan. This Plan shall otherwise terminate on
the earlier of the date that is five years from the date first appearing in this
Plan or the date on which the 650 millionth share is issued hereunder.
ATTEST:
/s/ Richard D. Surber
Richard D. Surber, President
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Exhibit C
MICHAEL GOLIGHTLY
268 West 400 South
Third Floor Telephone: (801) 575-8073 ext 152
Attorney at Law Salt Lake City, Utah 84101 Facsimile: (801) 575-8092
May 18, 2004
Board of Directors
Nexia Holdings, Inc.
268 West 400 South, Suite 300
Salt Lake City, Utah 84101
Re: Legality and Authorization of Shares Issued Under Form S-8 Registration
Statement
Gentlemen:
I have acted as special counsel for Nexia Holdings, Inc., a Nevada
corporation (the "Company"), in the limited capacity of rendering an opinion
regarding the legality and authorization of the shares proposed to be registered
under an amended registration statement on Form S-8 (the "Registration
Statement") to amend a prior filing on January 12, 2004 and as amended on
February 24, 2004. The proposed amendment is to be filed with the Securities and
Exchange Commission ("the Commission") under the Securities Act of 1933, as
amended, ("the Act"). The Company is registering a Post Effective Amendment to
the Benefit Plan entitled "The 2004 Benefit Plan of Nexia Holdings, Inc." (the
"Benefit Plan") pursuant to which the Company will authorized the issuance of
Six Hundred Fifty Million (650,000,000) shares of the Company's common stock,
par value $.001 (the "Shares").
In connection with the preparation of this Opinion, I have examined the
following:
1. The Company's Articles of Incorporation and amendments thereto and
Bylaws as submitted to me by the Company pursuant to my request for
same;
2. The Registration Statement herein referenced;
3. The Board of Directors Resolution, dated May 17, 2004, authorizing
and approving the Company's Post Effect Amendment No. Two to The 2004
Benefit Plan and the preparation of the Registration Statement; 4. The
Company's Section 10(a) Prospectus for the Registration Statement; 5.
The Company's Form 10-KSB for the fiscal year ended December 31, 2003;
6. Such other documents as I have deemed necessary for the purposes of
this Opinion.
Additionally, I have made such investigations of federal law as I have
considered necessary and appropriate to form a basis for this opinion. My
opinion is qualified by the scope of the review specified herein and I make no
representations as to the sufficiency of my investigation for this opinion. I
further
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expressly exempt from this opinion any representations as to the completeness,
adequacy, accuracy or any other aspect of the financial statements incorporated
in the Registration Statement.
The documentation and representations provided to me for this opinion
by the Company and its duly authorized representatives indicate that the Company
is validly organized under the laws of the State of Nevada; the Company is
current in its filings with the Commission; the Company's Board of Directors has
authorized the Benefit Plan; the Company's Board of Directors has authorized the
filing of the Post Effective Amended Registration Statement; and that the Six
Hundred Fifty Million (650,000,000) shares to be included in the Registration
Statement are available for issuance based upon corporate documentation and on
the amount of shares actually issued and outstanding. As such, I am of the
opinion that the Shares herein referenced have been duly and validly authorized
and that subject to compliance with all provision of the Plan, the Shares will
be validly issued as fully paid and non-assessable shares of common stock in the
Company.
This opinion is based upon and subject to the qualifications and
limitations specified below:
(A) Certain of the remedial provisions of the 2004 Benefit Plan may be
further limited or rendered unenforceable by other applicable laws and
interpretations.
(B) In rendering the opinion that the shares of the Common Stock to be
registered pursuant to the Registration Statement and issued under the
Benefit Plan will be validly issued, fully paid and non- assessable, I
assumed that: (1) the Company's Board of Directors has exercised good
faith in establishing the value paid for the Shares; (2) all issuances
and cancellations of the capital stock of the Company will be fully and
accurately reflected in the Company's Stock Records as provided by the
Company's transfer agent; and (3) the consideration, as determined by
the Company's Board of Directors, to be received in exchange for each
issuance of common stock of the Company, has been paid in full and
actually received by the Company.
(C) I have made no independent verification of the facts asserted to be
true and accurate by authorized representatives of the Company and have
assumed that no person or entity has engaged in fraud or
misrepresentation regarding the inducement relating to, or the
execution or delivery of, the documents reviewed.
(D) In rendering this opinion I have assumed that all signatures are
genuine, that all documents submitted to me as copies conform
substantially to the originals, that all documents have been duly
executed on or as of the date represented on the documents, that
execution and delivery of the documents was duly authorized on the part
of the parties, that all documents are legal, valid and binding on the
parties and that all corporate records are complete.
(E) I have assumed that the Company is satisfying the substantive
requirements of Form S-8 and I expressly disclaim any opinion regarding
the Company's compliance with such requirements, whether they are of
federal or state origin, or any opinion as to the subsequent
tradeability of any Shares issued pursuant to the Benefit Plan.
(F) I am admitted to practice law in the State of Utah. I am not
admitted to practice law in the State of Nevada or in any other
jurisdiction where the Company may own property or transact business.
This opinion is with respect to federal law only and I have not
consulted legal counsel from any other
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jurisdiction for the purpose of the opinion contained herein. I
expressly except from this opinion any opinion as to whether or to what
extent a Nevada court or any other court would apply Nevada law, or the
law of any other state or jurisdiction, to any particular aspect of the
facts, circumstances and transactions that are the subject of this
opinion.
(G) This opinion is strictly limited to the parameters contained and
referenced herein and is valid only as to the signature date with
respect to the same. I assume no responsibility to advise you of any
subsequent changes or developments which might affect any aspect to
this opinion.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. This opinion may not be used, relied upon, circulated,
quoted or otherwise referenced in whole or in part for any purpose without my
written consent.
Sincerely,
/s/ Michael Golightly
Michael Golightly
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