SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
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 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
Title of Securities to be Amounts to Proposed Maximum Proposed Maximum Amount of
Registered be Offering Price Per Aggregate Offering Registration
Registered Share(1) Price Fee
Common Stock, 0.001 par 50,000,000 $0.011 $550,000 $137.50
value
=================================== ================ ========================= =========================== ==================
(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 January 8, 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.
Page -1-
2004 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, 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.
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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
Page -4-
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.
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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 January 8, 2004.
Nexia Holdings, Inc.
By: /s/ Richard D. 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 D. Surber Director January 8, 2004
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Richard D. Surber
/s/ Gerald Einhorn Director January 8, 2004
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Gerald Einhorn
/s/ John Fry, Jr. Director January 8, 2004
-------------------------------
John Fry, Jr.
/s/ Adrienne Bernstein Director January 8, 2004
-------------------------------
Adrienne Bernstein
Page -6-
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)
Page -7-
INDEX TO EXHIBITS
Exhibits SEC Ref. No. Description of Exhibit Page
-------- ------------ ---------------------- ----
A 4 2004 Stock Benefit Plan of the Company 9
B 5, 23(b) Opinion and consent of Counsel with respect 13
to the legality of the issuance of securities
being issued
C 23(a) Consents of Accountants 16
Page -8-
THE 2004 BENEFIT PLAN OF NEXIA HOLDINGS, INC.
Nexia Holdings, Inc., a Nevada corporation (the "Company"), hereby
adopts The 2004 Benefit Plan of Nexia Holdings, Inc. (the "Plan") this 19th day
of December, 2003. Under the Plan, the Company may issue stock, or grant options
to acquire the Company's common stock, par value $0.001 (the "Stock"), from time
to time to employees of the Company or its subsidiaries, all on the terms and
conditions set forth herein ("Benefits"). In addition, at the discretion of the
Board of Directors, Benefits may from time to time be granted under this Plan to
other individuals, including consultants or advisors, who contribute to the
success of the Company or its subsidiaries, but are not employees of the Company
or its subsidiaries, provided that bona fide services shall be rendered by
consultants and advisors and such services must not be in connection with the
offer or sale of securities in a capital-raising transaction. No stock may be
issued, or option granted under the benefit plan to consultants, advisors, or
other persons who directly or indirectly promote or maintain a market for the
Company's securities.
1. Purpose of the Plan. The Plan is intended to aid the Company in maintaining
and developing a management team, attracting qualified officers and employees
capable of assuring the future success of the Company, and rewarding those
individuals who have contributed to the success of the Company. The Company has
designed this Plan to aid it in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company, but who
management perceives to have contributed to the success of the Company or who
are important to the continued business and operations of the Company. The above
goals will be achieved through the granting of Benefits.
2. Administration of this Plan. Administration of this Plan shall be determined
by the Company's Board of Directors (the "Board"). Subject to compliance with
applicable provisions of the governing law, the Board may delegate
administration of this Plan or specific administrative duties with respect to
this Plan on such terms and to such committees of the Board as it deems proper
(hereinafter the Board or its authorized committee shall be referred to as "Plan
Administrators"). The interpretation and construction of the terms of this Plan
by the Plan Administrators thereof shall be final and binding on all
participants in this Plan absent a showing of demonstrable error. No member of
the Plan Administrators shall be liable for any action taken or determination
made in good faith with respect to this Plan. Any Benefit approved by a majority
vote of those Plan Administrators attending a duly and properly held meeting
shall be valid. Any Benefit approved by the Plan Administrators shall be
approved as specified by the Board at the time of delegation.
3. Shares of Stock Subject to this Plan. A total of fifty million (50,000,000)
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.
4. Reservation of Stock on Granting of Option. At the time any Option is granted
under the terms of this Plan, the Company will reserve for issuance the number
of shares of Stock subject to such Option until it is exercised or expires. The
Company may reserve either authorized, but unissued shares or issued shares
reacquired by the Company.
Page -9-
5. Eligibility. The Plan Administrators may grant Benefits to employees,
officers, and directors of the Company and its subsidiaries, as may be existing
from time to time, and to other individuals who are not employees of the Company
or its subsidiaries, including consultants and advisors, provided that such
consultants and advisors render bona fide services to the Company or its
subsidiaries and such services are not rendered in connection with the offer or
sale of securities in a capital-raising transaction. In any case, the Plan
Administrators shall determine, based on the foregoing limitations and the
Company's best interests, which employees, officers, directors, consultants and
advisors are eligible to participate in this Plan. Benefits shall be in the
amounts, and shall have the rights and be subject to the restrictions, as may be
determined by the Plan Administrators, all as may be within the provisions of
this Plan.
6. Term of Options issued as Benefits and Certain Limitations on Right to
Exercise.
a. Each Option issued as a benefit hereunder ("Option") shall have its
term established by the Plan Administrators at the time the Option is
granted.
b. The term of the Option, once it is granted, may be reduced only as
provided for in this Plan and under the express written provisions of
the Option.
c. Unless otherwise specifically provided by the written provisions of
the Option or required by applicable disclosure or other legal
requirements promulgated by the Securities and Exchange Commission
("SEC"), no participant of this Plan or his or her legal
representative, legatee, or distributee will be, or shall be deemed to
be, a holder of any shares subject to an Option unless and until such
participant exercises his or her right to acquire all or a portion of
the Stock subject to the Option and delivers the required consideration
to the Company in accordance with the terms of this Plan and then only
as to the number of shares of Stock acquired. Except as specifically
provided in this Plan or as otherwise specifically provided by the
written provisions of the Option, no adjustment to the exercise price
or the number of shares of Stock subject to the Option shall be made
for dividends or other rights for which the record date is prior to the
date on which the Stock subject to the Option is acquired by the
holder.
d. Options shall vest and become exercisable at such time or times and
on such terms as the Plan Administrators may determine at the time of
the grant of the Option.
e. Options may contain such other provisions, including further lawful
restrictions on the vesting and exercise of the Options as the Plan
Administrators may deem advisable.
f. In no event may an Option be exercised after the expiration of its
term.
g. Options shall be non-transferable, except by the laws of descent and
distribution.
7. Exercise Price. The Plan Administrators shall establish the exercise price
payable to the Company for shares to be obtained pursuant to Options, which
exercise price may be amended from time to time as the Plan Administrators shall
determine.
8. Payment of Exercise Price. The exercise of any Option shall be contingent on
receipt by the Company of the exercise price paid in either cash, certified or
personal check payable to the Company.
9. Withholding. If the grant of a Benefit hereunder, or exercise of an Option
given as a Benefit is subject to withholding or other trust fund payment
requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or
applicable state or local laws, the Company will initially pay the Optionee's
Page -10-
liability and will be reimbursed by Optionee no later than six months after such
liability arises and Optionee hereby agrees to such reimbursement terms.
10. Dilution or Other Adjustment. The shares of Common Stock subject to this
Plan and the exercise price of outstanding Options are subject to proportionate
adjustment in the event of a stock dividend on the Common Stock or a change in
the number of issued and outstanding shares of Common Stock as a result of a
stock split, consolidation, or other recapitalization. The Company, at its
option, may adjust the Options, issue replacements, or declare Options void.
11. Benefits to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Benefits
to foreign nationals or individuals residing in foreign countries that contain
provisions, restrictions, and limitations different from those set forth in this
Plan and the Benefits made to United States residents in order to recognize
differences among the countries in law, tax policy, and custom. Such grants
shall be made in an attempt to give such individuals essentially the same
benefits as contemplated by a grant to United States residents under the terms
of this Plan.
12. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Plan Administrators shall determine, in
their sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any state
or federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Plan Administrators.
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 50 millionth share is issued hereunder.
14. Amendment of this Plan. This Plan may not be amended more than once during
any six month period, other than to comport with changes in the Code or the
Employee Retirement Income Security Act or the rules and regulations promulgated
thereunder. The Plan Administrators may modify and amend this Plan in any
respect.
ATTEST:
/s/ Richard D. Surber
---------------------
Richard D. Surber, President
Page -11-
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
December 30, 2003
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 a registration statement on Form S-8 (the "Registration Statement") 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
Benefit Plan entitled "The 2004 Benefit Plan of Nexia Holdings, Inc." (the
"Benefit Plan") pursuant to which the Company has authorized the issuance of
Fifty Million (50,000,000) 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 December 19, 2003, authorizing
and approving the Company's 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, 2002;
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 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.
Page -12-
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 Registration Statement; and that the Fifty Million (50,000,000)
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 jurisdiction for the purpose of the opinion contained herein. I
expressly except
Page -13-
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
Page -14-
HJ & ASSOCIATES, L.L.C..
CERTIFIED PUBLIC ACCOUNTANTS AND CONSULTANTS
50 South Main Street, Suite 1450
Salt Lake City, Utah 84144
January 8, 2004
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors and Shareholders of
Nexia Holding, 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 27, 2003,
(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, 2002 and to all references to our firm included in this
Registration Statement.
/s/ HJ & Associates, LLC
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HJ & Associates, LLC
Salt Lake City, Utah
January 8, 2004
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TANNER + CO.
BUSINESS ADVISORS AND CERTIFIED PUBLIC ACCOUNTANTS
215 South State Street, Suite 800
Salt Lake City, Utah 84111
INDEPENDENT AUDITOR'S CONSENT
Nexia Holdings, Inc.
We hereby consent to the use of our audit report dated March 26, 2002
of Diversified Holdings I, Inc., Wichita Development Corporation, Golden
Opportunity Development Corporation, Wasatch Capital Corporation, Downtown
Development Corporation and Canton Tire Recycling of West Virginia, Inc. for the
year ended December 31, 2001 in the Form S-8 of Nexia Holdings, Inc.
/s/ Tanner + Co.
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Salt Lake City, Utah
January 7, 2004
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