CURRENT REPORT FOR ISSUERS SUBJECT TO THE
1934 ACT REPORTING REQUIREMENTS
FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934.
Date of Event: August 31, 2004
(date of earliest event reported)
NEXIA HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Nevada
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(State or other jurisdiction of incorporation or organization)
033-22128D 84-1062062
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(Commission File Number) (IRS Employer Identification Number)
268 West 400 South, Suite 300, Salt Lake City, Utah 84101
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(Address of principal executive offices)
(801) 575-8073
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(Registrant's telephone number, including area code)
ITEM 8. OTHER EVENTS
On the 25h day of August, 2004, Nexia Holdings, Inc. (the "Company") approved
for filing with the Secretary of State for Nevada a "Certificate of
Determination of the Rights and Preferences of Preferred Stock of Nexia
Holdings, Inc." This document sets forth and designates the rights and
privileges of the Preferred Stock of the Company that are designated as Series B
Preferred Stock and authorized in the amount of 10,000,000 shares, out of the
total number of 50,000,000 preferred shares authorized by the Company's Articles
of Incorporation.
The Series B Preferred Stock is designated as having a par value of $0.001 per
share and designated as senior to the Common Stock of the Company. In the event
of liquidation the shares have a priority right to $0.001 per share in any
distribution as a result of liquidation. These shares are given the same voting
rights as Common Shares on a five hundred-for-one (500 to 1) basis.
Rights to dividends are granted to the Series B Preferred Stock equal to those
of the Common Stock, when, as and if declared by the Directors of the Company,
to be paid in cash or in common stock equal to market value at the election of
the Company. The Series B Preferred Stock have no conversion rights into any
other class or series of stock.
The information provided hereinabove is merely a synopsis of the basic terms of
the determination document referenced above, which descriptions are qualified in
their entirety by the terms of the document itself, which document is attached
hereto as an exhibit and thereby incorporated herein by reference
ITEM 7. Financial Statements and Exhibits The following exhibits are included as
part of this report:
Exhibit No. Page No. Description
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4 3 Certificate of Determination of the Rights and
Preferences of Preferred Stock of Nexia Holdings, Inc.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated this 30th day of August, 2004.
Nexia Holdings, Inc.
/s/ Richard Surber
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Richard Surber, President
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Exhibit 4
CERTIFICATE OF DETERMINATION
OF THE RIGHTS AND PREFERENCES OF PREFERRED STOCK
OF NEXIA HOLDINGS INC.
WHEREAS, the Articles of Incorporation of NEXIA HOLDINGS INC., a
corporation organized and existing under the laws of Nevada (the "Company"), as
amended, provide that the Company has authorized Fifty Million (50,000,000)
shares of par value $0.001 preferred stock ("Preferred Stock") and, further,
that this be the designation, powers, preferences and relative participating,
option or other special rights and qualification, limitations or restrictions of
the shares of such Preferred Stock as may be issued from time to time in one or
more series, each of such series to have such voting powers, designation,
preferences, and relative participating, optional or other special rights and
the qualifications, limitations or restrictions thereof, as expressed herein or
in a resolution or resolutions, providing for the issuance of such series,
adopted by the directors; and
WHEREAS, THE COMPANY DOES HEREBY CERTIFY that pursuant to the authority
contained in its Articles of Incorporation, and in accordance with the
provisions of applicable law of Nevada, the Company's directors have duly
adopted the following resolutions determining the Designations, Rights and
Preferences of a special class of its authorized Preferred Stock, herein
designated as Series B Convertible Preferred Stock.
"RESOLVED, that pursuant to the authority vested in the directors of
this Company by its Articles of Incorporation, a special class of preferred
stock of the Company be and is hereby created out of the 50,000,000 shares of
Preferred Stock available for issuance, such series to be designated as Series B
Convertible Preferred Stock (the "Series B Preferred"), consisting of Ten
Million (10,000,000) shares, of which the preferences and relative rights and
qualifications, limitations or restrictions thereof (in addition to those set
forth in the Company's Articles of Incorporation), shall be as follows:
1. DEFINITIONS
Common Stock. The term "Common Stock" shall mean all shares now or
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hereafter authorized of any class of Common Stock of the Company and
any other stock of the Company, howsoever designated, authorized after
the Issue Date, which has the right (subject always to prior rights of
any class or series of Preferred Stock) to participate in the
distribution of the assets and earnings of the Company without limit as
to per share amount.
Issue Date. The term "Issue Date" shall mean the date that shares of
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Series B Preferred are first issued by the Company.
Junior Stock. The term "Junior Stock" shall mean, for purposes of these
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resolutions, any class or series of stock of the Company authorized
after the Issue Date not entitled to receive any dividends in any
dividend period unless any dividends required to have been paid or
declared and set apart for payment on the Series A and Series B
Preferred shall have been so paid or declared and set apart for payment
and, for purposes of these resolutions, shall mean Common Stock and any
other class or series of stock of the Company authorized after the
Issue Date not entitled to receive any assets upon liquidation,
dissolution or winding up of the affairs of the Company until the
Series A Preferred shall have received the entire amount to which such
stock is entitled upon such liquidation, dissolution or winding up.
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Parity Stock. The term "Parity Stock" shall mean, for purposes of these
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resolutions the Common Stock and any other class or series of stock of
the Company authorized after the Issue Date entitled to receive payment
of dividends subject only to those preferential rights of dividends
granted to the Series A Preferred and Series B Preferred shares and,
for purposes of these resolutions, shall mean any class or series of
stock of the Company authorized after the Issue Date entitled to
receive assets upon liquidation, dissolution or winding up of the
affairs of the Company subject to only those preferential rights and
preference granted to the Series A and Series B Preferred.
Senior Stock. The term "Senior Stock" shall mean, for purposes of these
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resolutions, any class or series of stock of the Company authorized
before the Issue Date of the Series B Preferred except for those
preferential rights as granted herein but the right to receive
dividends providing all dividends granted to the Series B Preferred
shall have been paid or set aside to be paid, and, for purposes of
these resolutions, shall mean any class or series of stock of the
Company authorized after the Issue Date ranking equal to the Series B
Preferred and the right to participate in any distribution upon
liquidation, dissolution or winding up of the affairs of the Company
except for those preferential rights granted to the Series B Preferred
herein.
2. Rights, Powers and Preferences
The Series B Preferred shall have the voting powers, preferences and
relative, participating, optional and other special rights,
qualifications, limitations and restrictions as follows:
A. Designation and Amount. Out of the presently authorized
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preferred shares, Ten Million (10,000,000) shares of par value
$0.001 preferred stock shall be designated as shares of
"Series B Convertible Preferred Stock" and par value shall
remain at $0.001 per share.
B. Rank. The Series B Preferred shall be senior to the Common
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Stock and any subsequently authorized series or class of the
Company's Preferred Stock.
C. Liquidation Rights.
(i) In the event of any liquidation, dissolution, or winding
up of the Company, whether voluntary or involuntary,
the holders of the Series B Preferred then outstanding
shall be entitled to be paid out of the assets of the
Company available for distribution to its shareholders,
before any payment or declaration and setting apart for
payment of any amount shall be made in respect of any
outstanding capital stock of the Company, an amount equal
to $0.001 per share. Then all of the assets of the
Company available to be distributed shall be distributed
ratably to the holders of the Series A and B Preferred
and then to the holders of other outstanding shares of
capital stock of the Company. If upon any liquidation,
dissolution, or winding up of the Company, whether
voluntary or involuntary, the assets to be
distributed to the holders of the Series B Preferred
shall be insufficient to permit the payment to the
holders thereof the full preferential amount as provided
herein, then such available assets shall be distributed
ratably to the holders of the Series B Preferred.
(ii) None of the following events shall be treated as or
deemed to be a liquidation hereunder:
(a) A merger, consolidation or reorganization of the
Company;
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(b) A sale or other transfer of all or substantially all
of the Company's assets;
(c) A sale of 50% or more of the Company's capital stock
then issued and outstanding;
(d) A purchase or redemption by the Company of stock of
any class; or
(e) Payment of a dividend or distribution from funds
legally available therefor.
D. Voting Rights. In all matters the Series B Preferred shall
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have the same voting rights as the Common Stock on a five
hundred-for-one basis and any proposal upon which a vote of
shareholders is taken must receive a majority of the votes
from both the Series A Preferred shares, the Series B
Preferred shares and the Common Stock to be approved. If the
Company effects a stock split which either increases or
decreases the number of shares of Common Stock outstanding and
entitled to vote, the voting rights of the Series B Preferred
shall not be subject to adjustment unless such stock split
shall be applied to the Series B Preferred.
3. Dividends
The holders of the Series B Preferred shall be entitled to receive
Common Stock dividends when, as, and if declared by the directors of
the Company, to be paid in cash or in Market Value of the Company's
common stock at the election of the Company. "Market Value", for the
purposes of this Certificate of Determination shall mean the average of
the bid and ask prices for the common stock of the Company for the five
business days preceding the declaration of a dividend by the Board of
Directors.
Without prior written consent of the majority of the holders of Series
B Preferred, so long as any shares of Series B Preferred shall be
outstanding, the Company shall not declare or pay on any Junior Stock
any dividend whatsoever, whether in cash, property or otherwise, nor
shall the Company make any distribution on any Junior Stock, nor shall
any Junior Stock be purchased or redeemed by the Company or any of its
subsidiaries of which it owns not less than 51% of the outstanding
voting stock, nor shall any monies be paid or made available for a
sinking fund for the purchase or redemption of any Junior Stock, unless
all dividends to which the holders of Series B Preferred shall have
been entitled for all previous dividend periods shall have been paid or
declared and a sum of money sufficient for the payment thereof and the
Redemption Price is set apart.
4. Conversion
The Series B Preferred shall not have any conversion rights into any
other class or series of stock.
5. Protective Provisions
Notwithstanding anything contained herein to the contrary, as long as any of the
Series B Preferred shall be outstanding, the Company shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least two-thirds of the total number of shares of Series B
Preferred outstanding:
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A. Alter or change the rights, preferences or privileges of the
Series B Preferred by way of reverse stock split,
reclassification, merger, consolidation or otherwise, so as to
adversely affect in any manner the voting rights including
number of votes presently allowed.
B. Increase the authorized number of Series B Preferred.
C. Create any new class of shares having preferences over or
being on a parity with the Series B Preferred as to dividends
or assets, unless the purpose of creation of such class is,
and the proceeds to be derived from the sale and issuance
thereof are to be used for, the retirement of all Series B
Preferred then outstanding.
D. Repurchase any of the Company's Common Stock.
E. Merge or consolidate with any other Company, except into or
with a wholly-owned subsidiary of the Company with the
requisite shareholder approval.
F. Sell, convey or otherwise dispose of, or create or incur any
mortgage, lien, charge or encumbrance on or security interest
in or pledge of, or sell and leaseback, all or substantially
all of the property or business of the Company.
G. Incur, assume or guarantee any indebtedness (other than such
as may be represented by the obligation to pay rent under
leases) maturing more than 18 months after the date on which
it is incurred, assumed or guaranteed by the Company, except
purchase money obligations, obligations assumed as part of the
price of property purchased, or the extension, renewal or
refunding of any thereof.
6. Reissuance
No share or shares of Series B Preferred acquired by the Company shall
be reissued as Series B Preferred, and all such shares thereafter shall
be returned to the status of undesignated and unissued shares of
Preferred Stock of the Company.
7. Headings or Subdivisions
The heading of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the
provisions hereto.
8. Severability of Provisions
If any right, preference or limitation of the Series B Preferred set
forth in this resolution (as such resolution may be amended from time
to time) is invalid, unlawful or incapable of being enforced by reason
of any rule of law or public policy, all other rights, preferences and
limitations set forth in this resolution (as so amended) which can be
given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and
effect, and no right, preference or limitation herein set forth shall
be deemed dependent upon any other such right, preference or limitation
unless so expressed herein.
9. Status of Reacquired Stock
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Shares of Series B Preferred which have been issued and reacquired in
any manner shall, upon compliance with any applicable provisions of
Nevada law, have the status of authorized and unissued shares of
Preferred Stock and may be redesignated and reissued in any series or
class.
IN WITNESS WHEREOF, the undersigned Directors, the president and the secretary
ofNEXIA HOLDINGS INC., a Nevada corporation, did hereby execute this Certificate
effective the 30th day of August, 2004.
/s/ Richard D. Surber /s/ Gerald Einhorn
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Richard D. Surber, Director & President Gerald Einhorn, Director & Secretary
/s/ John E. Fry, Jr. /s/ Adrienne Berstein
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John E. Fry, Jr., Director Adrienne Bernstein, Director
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