SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
POST EFFECTIVE AMENDMENT NUMBER
SEVEN
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
NEXIA
HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Nevada 84-1062062
(State or other jurisdiction of (I.R.S. Employer
Identification No.)
incorporation or organization)
59 West 100 South, Second Floor, Salt Lake City, Utah 84101
(Address of principal executive offices)
The Amended 2004 Benefit Plan of Nexia Holdings, Inc.
(Full title of the plan)
Richard D. Surber, 59 West 100 South, Second Floor, Salt Lake City, Utah 84101
(Name, address, including zip code, of agent for service)
Telephone number for Issuer: (801) 575-8073
CALCULATION OF REGISTRATION FEE
Title of Amounts Proposed Proposed Amount
Securities to be to be Maximum Maximum of
Registered Register Offering Aggregate Registra
ed Price Per Offering tion Fee
Share(1) Price
Common Stock, 2,000,00 $0.0002 $400,000 $50.68
0.001 par value 0,000
(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 December 10, 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.
Post Effective Amendment to the
2004 Benefit Plan of Nexia Holdings, Inc.
This Post Effective Amendment No. Seven 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, previously amended on February 24, 2004,
file no. 333-113053, on May 21, 2004, file no. 333-115720, on July 26, 2004,
file no. 333-117658, on September 7, 2004, file no. 333-118835, on October 7,
2004, file no. 333-119588 and on November 12, 2004, file no. 333-120392, each of
which is incorporated herein by reference. This seventh amendment will increase
the number of shares to be included in the plan by Two Billion (2,000,000,000)
post reverse shares of the common stock of the Company.
On November 1, 2004 the Company carried out a 1 for 1,000 reverse stock split of
the common stock, thus the previously registered number of shares of Three
Billion Six Hundred Fifty Million (3,650,000,000) would have been reduced to
3,650,000 post reverse shares, the additional 500,000,000 shares to be
registered pursuant to Amendment No. Six increased the total number of post
reverse shares registered under The 2004 Benefit Plan of Nexia Holdings, Inc. to
503,650,000 shares and the additional 2,000,000,000 shares pursuant to this
Amendment No. Seven increases the total number of post reverse shares registered
under The 2004 Benefit Plan of Nexia Holdings, Inc. to 2,503,650,000.
The seventh amendment to the 2004 Benefit Plan of Nexia Holdings, Inc. is filed
as Exhibit "A" hereto. The additional two billion (2,000,000,000) post-reverse
split 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.
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 December 13, 2004.
Nexia Holdings, Inc.
By: /s/ Richard Surber
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
/s/ Richard Surber Director
December 12, 2004
Richard D. Surber
/s/ Gerald Einhorn Director
December 12, 2004
Gerald Einhorn
/s/ John Fry Director December
12, 2004
John Fry, Jr.
/s/ Adrienne Bernstein Director December 12, 2004
Adrienne Bernstein
INDEX TO EXHIBITS
Page
Exhibit SEC Ref. Description of Exhibit
s No.
A 23(a) Consent of Accountant 5
B 4 Amendment to 2004 Benefit 6
Plan of Nexia Holdings, Inc.
C 5, 23(b) Opinion and consent of 7
Counsel with respect to the
legality of the issuance of
securities being issued
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
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
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 Post Effective
Amendment to the 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.
HJ & Associates
HJ & Associates, LLC
Salt Lake City, Utah
December 15, 2004
Exhibit B.
POST EFFECTIVE AMENDMENT NUMBER SEVEN TO THE
THE 2004 BENEFIT PLAN OF NEXIA HOLDINGS, INC.
Effective this 13th day of December, 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 Two Billion Five Hundred
Three Million Six Hundred Fifty Thousand (2,503,650,000) post November 1, 2004
reverse split 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
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 two billion five hundred three million six
hundred fifty thousandth post November 1, 2004 reverse stock split share is
issued hereunder.
ATTEST:
/s/ Richard Surber
Richard D. Surber, President
Exhibit C
MICHAEL GOLIGHTLY
59 West 100 South
Second Floor Telephone: (801) 575-8073 ext 105
Attorney at Law Salt Lake City, Utah 84101Facsimile: (801) 575-8092
December 13, 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,
May 21, 2004, July 26, 2004, September 7, 2004, October 7, 2004 and November 12,
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 an
additional Two Billion (2,000,000,000) shares of the Company's common stock, par
value $.001 (the "Shares"). All references to shares and the number of shares
reflect the 1 for 1,000 reverse stock split of the common stock the Company as
of November 1, 2004.
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 December 13, 2004, authorizing and
approving the Company's Post Effect Amendment No. Seven 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. The Company's Form 10-QSB for the quarter ended March 31, 2004;
7. The Company's Form 10-QSB for the quarter ended June 30, 2004;
8. The Company's Form 10-QSB for the quarter ended September 30, 2004;
9. 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 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 Two
Billion (2.000,000,000) shares to be included in the Amendment to 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 States of Utah and Texas. 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 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