NEXH S-8 03/30/2006
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
NEXIA
HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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84-1062062
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(State
or other jurisdiction of
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(I.R.S.
Employer Identification No.)
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incorporation
or organization)
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59
West 100 South, Second Floor, Salt Lake City, Utah 84101
(Address
of principal executive offices)
The
2006 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
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Title
of Securities to be Registered
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Amounts
to be Registered
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Proposed
Maximum Offering Price Per Share(1)
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
Stock, 0.001 par value
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500,000,000
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$0.0004
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$200,000
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$25.34
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(1)
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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 March 27, 2006, a date within five business days
prior
to the date of filing of this registration
statement.
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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.
2006
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
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,
2004.
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, 2004.
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.
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 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.
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.
(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 March 27,
2006.
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Nexia
Holdings, Inc. |
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By: |
/s/ Richard
D. Surber |
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Richard D. Surber
President
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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.
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Signature
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Title
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Date
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/s/
Richard Surber
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Director
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March
27, 2006
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Richard
D. Surber
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/s/
Gerald Einhorn
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Director
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March
27, 2006
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Gerald
Einhorn
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/s/
Adrienne Bernstein
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Director
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March
27, 2006
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Adrienne
Bernstein
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INDEX
TO EXHIBITS
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Exhibits
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SEC
Ref. No.
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Description
of Exhibit
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Page
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A
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4
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9
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B
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5,
23(b)
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13
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