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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
(Amendment No. ___)
AMERICAN FAMILY HOLDINGS, INC.
(Name of small business issuer in its charter))
Delaware 6500 33-0769625
---------------------- ---------------------- -------------------
(State or (Primary Standard (IRS Employer
Jurisdiction of Industrial Identification
Organization or Classification Code Number)
Incorporation) Number)
4220 Von Karman Avenue, Suite 110
Newport Beach, California 92660
714-833-8600
(Address and telephone number of principal executive offices)
4220 Von Karman Avenue, Suite 110
Newport Beach, California 92660
(Address of principal place of business or intended principal place of business)
David G. Lasker, President
4220 Von Karman Avenue, Suite 110
Newport Beach, California 92660
714-833-8600
(Name, address and telephone number of agent for service)
Copy to:
David R. Decker
Arter & Hadden, LLP
700 S. Flower St., 30th Fl.
Los Angeles, CA 90017
Approximate date of proposed sale to the public: AS SOON AS PRACTICAL AFTER
THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
-----------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
------------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
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CALCULATION OF REGISTRATION FEE
PROPOSED
MAXIMUM
OFFERING PROPOSED
TITLE OF AMOUNT PRICE PER MAXIMUM AMOUNT OF
SECURITIES BEING BEING SHARE OR AGGREGATE REGISTRATION
REGISTERED REGISTERED UNIT (3) OFFERING PRICE FEE(4)
---------------- ----------- --------- -------------- ------------
Units(1) 500,000 $10.00 5,000,000 1,724.00
Common Stock 1,000,000(2) $8.00 8,000,000 2,758.40
TOTAL 1,500,000 $13,000,000 $4,482.40(5)
(1) Units consist of one share of Common Stock and a warrant to purchase two
shares of Common Stock at a per share price equal to 80% of the closing
price on the trading date before exercise.
(2) Issuable upon exercise of the warrants included in the Units.
(3) $10 is an arbitrary amount chosen and is not intended to imply that the
Common Stock will trade at a price of $10 per share.
(4) The registration fee for the common stock and the units to be issued in
this offering has been calculated using the maximum number of shares and
Units that can be issued in this offering. The registration fee for the
common stock issuable upon exercise of the warrants has been calculated
pursuant to Rule 457(i) assuming that all of the warrants would be
exercised at a price equal to 80% of the offering price of the other common
stock issued in this offering.
(5) Paid previously with the filing of Registration Statement File No.
333-37161.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act, this Registration Statement is
related to the issuer's Registration Statement File No. 333-37161 on Form S-4
(the "S-4"). The S-4 was originally filed with the Commission on October 3,
1997.
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AMERICAN FAMILY HOLDINGS, INC.
CROSS-REFERENCE SHEET
ITEM OF FORM SB-2 PROSPECTUS* CAPTION OR LOCATION
- ----------------- -------------------------------
1. Front of Registration
Statement and Outside Front
Cover of Prospectus.................... Cover of Registration Statement;
Cross Reference sheet; Outside
Front Cover of Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus.............. Prospectus Summary; Reports to
Shareholders
3. Summary Information and Risk Factors... Prospectus Summary; Risk Factors
4. Use of Proceeds........................ Use of Proceeds
5. Determination of Offering Price........ The Offering
6. Dilution............................... Dilution
7. Selling Securityholders................ Not Applicable
8. Plan of Distribution................... Prospectus Summary; The Offering
9. Legal Proceedings...................... Business and Properties
10. Directors, Executive Officers,
Promoters and Control Persons.......... Prospectus Summary; Management
Following the Acquisition
11. Security Ownership of Certain
Beneficial Owners and Management....... Prospectus Summary; Principal
Shareholders; Management Following
the Acquisition
12. Description of Securities.............. Prospectus Summary; Description of
Shares
13. Interest of Named Experts and
Counsel................................ Not Applicable
14. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities........................ Fiduciary Responsibility and
Indemnification
15. Organization within Last Five Years.... Not Applicable
16. Description of Business................ Prospectus Summary; Business
and Properties
17. Management's Discussion and
Analysis or Plan of Operation.......... Management's Discussion and
Analysis of Financial Condition
and Results of Operations
18. Description of Property................ Prospectus Summary; Business and
Properties; Appraisals and
Fairness Opinion
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AMERICAN FAMILY HOLDINGS, INC.
CROSS-REFERENCE SHEET
(continued)
ITEM OF FORM SB-2 PROSPECTUS* CAPTION OR LOCATION
- ----------------- -------------------------------
19. Certain Relationships and
Related Transactions................... Not Applicable
20. Market for Common Equity and
Related Stockholder Matters............ Risk Factors; The Offering; Shares
Available for Future Sale
21. Executive Compensation................. Prospectus Summary; Management
Following the Acquisition
22. Financial Statements................... Prospectus Summary; Selected
Financial Information;
Financial Statements
23. Changes in and Disagreements
with Accountants on Accounting and
Financial Disclosure................... Not Applicable
ITEM OF FORM S-11**
- -----------------
13. Investment Policies of Registrant...... Prospectus Summary; Policies
with Respect to Certain Activities
14. Description of Real Estate............. Prospectus Summary; Business and
Properties; Appraisals and
Fairness Opinion
15. Operating Data......................... Prospectus Summary; Business and
Properties
- -----------------------------------------------
* References are to prospectus contained in the Company's Registration
Statement on Form S-4, Registration Statement File No. 333-37161
** As required by General Instruction B.2. of Form SB-2
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PROSPECTUS
Pursuant to Rule 429, promulgated under the Securities Act of 1933, as
amended, the Prospectus is hereby incorporated by reference from the
Prospectus contained in Registration Statement on Form S-4 filed by American
Family Holdings, Inc. (the "Form S-4"), Registration Statement File No.
333-37161. The Form S-4 was filed with the Securities and Exchange
Commission on October 3, 1997.
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PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 24 Indemnification of Directors and Officers
Pursuant to the Registrant's Certificate of Incorporation and
By-Laws and pursuant to Section 145 of the Delaware General Corporation Law,
directors, officers and agents of the Registrant are entitled to
indemnification for their actions in respect of the Registrant to the fullest
extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to officers, directors and controlling persons of the
Registrant pursuant to such 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.
Item 25 Other Expenses of Issuance and Distribution
SEC Registration Fee..................................... $ 4,482.40*
NASD Fees................................................ 1,800.00*
Representative Non-Accountable Expense Allowance......... 0
Accounting Fees and Expenses............................. **
Legal Fees and Expenses.................................. **
Printing Expenses........................................ **
Blue Sky Fees and Expenses............................... 0
Transfer Agent Fees (if applicable)...................... **
Miscellaneous............................................ **
Total............................................... **
* Previously paid in connection with Registration Statement No.
333-37161.
** To be filed by amendment.
Item 26 Recent Sales of Unregistered Securities
On or about August 29, 1997, the Company issued an aggregate of 371,185
shares of common stock to Yale Partnership for Growth and Development, L.P.
(which is controlled by David G. Lasker, President of the Company), J-Pat,
L.P. (which is controlled by James N. Orth, Chief Executive Officer of the
Company), L.C. "Bob" Albertson, Jr., Executive Vice President of the Company,
and certain consultants to the Company. Such shares were purchased for
$3,712 in cash. On or about October 23, 1997, the Company issued an aggregate
of 18,918 additional shares to members of management for $189.18 in cash.
The issuances of the shares were exempt
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from the filing requirements of the Securities Act of 1933, as amended (the
"Act") by virtue of Section 4(2) of the Act, as a transaction by an issuer
not involving any public offering.
Item 27 Exhibits
1.1 Form of Wholesaling Agreement between the Company and L.H.
Friend, Weinress, Frankson & Presson, Inc.*
1.2 Form of Selling Agreement between the Company and participating
broker-dealers*
2.1 Form of Agreement of Purchase and Sale and Joint Escrow
Instructions for Mori Point Property*
2.2 Form of Agreement of Purchase and Sale and Joint Escrow
Instructions for Oceanside Property*
2.3 Form of Agreement of Purchase and Sale and Joint Escrow
Instructions for Yosemite/Ahwahnee I and II Property*
2.4 Form of Agreement of Purchase and Sale and Joint Escrow
Instructions for Delta Greens Property*
3.1 Certificate of Incorporation of American Family Holdings, Inc.*
3.2 Certificate of Amendment of Certificate of Incorporation before
the Issuance of Stock*
3.3 By-Laws of American Family Holdings, Inc.*
4.1 Pages 1 through 4 of the Certificate of Incorporation of the
Company Filed as Exhibit 3.1 above defining the rights of
security holders are incorporated herein by this reference*
4.2 American Family Holdings, Inc. Warrant to Purchase Shares of
Common Stock*
5.1 Opinion of Arter & Hadden LLP regarding legality of units and
shares underlying warrants
8.1 Form of Arter & Hadden LLP tax opinion*
10.1 Form of Employment Agreement of David Lasker*
10.2 Form of Employment Agreement of James Orth*
10.3 Form of Employment Agreement of L.C. "Bob" Albertson, Jr.*
10.4 1997 Stock Option and Incentive Plan for Officers, Independent
Directors and Employees of American Family Holdings, Inc. and
Affiliates*
21.1 Subsidiaries of the Registrant*
23.1 Consent of Arter & Hadden LLP as counsel contained in Exhibit
5.1
23.2 Consent of BDO Seidman, LLP as independent accountants
23.3 Consent of Houlihan Valuation Advisers
23.4 Consent of David E. Lane, Inc. (re Sacramento Greens appraisal)
23.5 Consent of Boznanski and Company (re Oceanside appraisal)
23.6 Consent of Arnold Associates (re Yosemite/Ahwahnee appraisals)
23.7 Consent of PKF Consulting (re Mori Point appraisal)
23.8 Consent of The Mentor Group, Inc. (re Yosemite/Ahwahnee
appraisal)
23.9 Consent of Arter & Hadden LLP as counsel contained in Exhibit
8.1*
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23.10 Consent of Arter & Hadden LLP as counsel contained in Exhibit
5.1
24.1 Power of Attorney (see signature page)
99.1 Appraisal Report "Delta Greens" Residential Subdivision,
Sacramento, California, value dated as of May 9, 1997*
99.2 Appraisal of Ahwahnee Golf Course and Resort, Madera County,
California, value dated as of May 1, 1997*
99.3 intentionally left blank
99.4 Complete, Self-Contained Appraisal Partially Finished
Residential Land 111 Residential Lots, "Symphony," Oceanside,
California, value dated as of May 15, 1997*
99.5 Appraisal of Fee Simple Estate in a 104.98 Acre Parcel
Designated for Hotel Development, Located at Mori Point in
Pacific, California, value dated as of May 1, 1997*
99.6 Appraisal of Ahwahnee Resort and Country Club, value dated
October 10, 1996*
* Incorporated by reference to identically numbered exhibits in
the Company's Registration Statement on Form S-4 and all
amendments thereto. Such Registration Statement was originally
filed October 3, 1997.
Item 28 Undertakings
(i) The undersigned Registrant hereby undertakes:
(A) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(1) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(2) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and
(3) 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.
(B) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment 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 official BONA FIDE offer thereof.
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(C) 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.
(ii) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, 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 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 proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of competent
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 issue.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form SB-2 and authorized this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Newport Beach, State of California,
on January 13, 1998.
AMERICAN FAMILY HOLDINGS, INC.
By /s/ David G. Lasker
-------------------------------
David G. Lasker,
Co-Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears appoints each of David Lasker and
James Orth, his agent and attorney-in-fact, with full power of substitution
to execute for him and in his name, in any and all capacities, all amendments
(including post-effective amendments) to the Registration Statement to which
this power of attorney is attached.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Co-Chairman of the Board
President
/s/ David G. Lasker Chief Financial Officer
- ----------------------------- Chief Accounting Officer January 13, 1998
David G. Lasker
Co-Chairman of the Board
/s/ James N. Orth Chief Executive Officer
- ----------------------------- Secretary January 13, 1998
James N. Orth
/s/ L.C. "Bob" Albertson, Jr. Executive Vice President
- ----------------------------- Director January 13, 1998
L.C. "Bob" Albertson, Jr.
/s/ Charles F. Hanson
- ----------------------------- Director January 13, 1998
Charles F. Hanson
/s/ Dudley Muth
- ----------------------------- Director January 13, 1998
Dudley Muth
/s/ John G. LeSieur, III
- ----------------------------- Director January 13, 1998
John G. LeSieur, III
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EXHIBIT INDEX
EXHIBIT
5.1 Opinion of Arter & Hadden LLP regarding legality of units and
shares underlying warrants.
23.2 Consent of BDO Seidman, LLP as independent accountants
23.3 Consent of Houlihan Valuation Advisers
23.4 Consent of David E. Lane, Inc. (re Sacramento Greens appraisal)
23.5 Consent of Boznanski and Company (re Oceanside appraisal)
23.6 Consent of Arnold Associates (re Yosemite/Ahwahnee appraisals)
23.7 Consent of PKF Consulting (re Mori Point appraisal)
23.8 Consent of The Mentor Group, Inc. (re Yosemite/Ahwahnee
appraisal)
23.10 Consent of Arter & Hadden LLP as counsel contained in Exhibit
5.1
24.1 Power of Attorney (see signature page)
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EXHIBIT 5.1
[ARTER & HADDEN, LLP LETTERHEAD]
January 13, 1998
66944/66608
American Family Holdings, Inc.
4220 Von Karman Avenue
Suite 110
Newport Beach, California 92660
Re: REGISTRATION STATEMENT ON FORM SB-2
Gentlemen:
We have acted as special counsel to American Family Holdings, Inc. (the
"Company") in connection with the preparation and filing with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form SB-2 (the "Registration Statement") relating
to the public offering by the Company of up to 500,000 units, each unit
consisting of one share of Common Stock and a warrant to purchase two shares
of Common Stock for a per share purchase price equal to 80% of the closing
market price on the trading day before exercise, and the public offering by
the Company of the 1,000,000 shares of Common Stock underlying the units.
In so acting, we have examined and relied upon the original or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, documents, certificates, and other instruments, and such factual
information otherwise supplied to us by the Company as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
On the basis of and subject to the foregoing, we are of the opinion the
Units, when issued and sold pursuant to the Registration Statement and
Prospectus, will, under the laws of the State of Delaware, upon payment
therefor in accordance with the terms of the Registration Statement and the
Prospectus, be duly and validly issued, fully paid, and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the headings "Federal Income Tax
Consequences" and "Legal Matters" in the Preliminary Prospectus forming a
part of the Registration Statement.
Very truly yours,
/s/ Arter & Hadden, LLP
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CONSENT OF INDEPENDENT AUDITORS
To the Stockholders and Directors of
American Family Holdings, Inc.
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement on Form SB-2 of our report dated October 31, 1997,
relating to the financial statement of American Family Holdings, Inc., as of
September 30, 1997; and our reports dated May 27, 1997 relating to the
financial statements of the Oceanside Program, the Yosemite/Ahwahnee Program,
the Mori Point Program and the Sacramento/Delta Greens Program for each of
the two years in the period ended December 31, 1996, which are contained in
that Prospectus.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO Seidman, LLP
/s/ BDO Seidman, LLP
Los Angeles, California
January 10, 1998
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CONSENT
The undersigned hereby consents to the filing of its Fairness Opinion as
an exhibit to the registration statement on Form SB-2 filed by American
Family Holdings, Inc. with the Securities and Exchange Commission (the
"Registration Statement") and to the reference to us under the caption
"Appraisals and Fairness Opinion" in the prospectus which is a part of the
Registration Statement.
Dated: January 13, 1998
HOULIHAN VALUATION ADVISORS
By /s/ BRET TACK
----------------------------
Print Name Bret Tack
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Title Principal
--------------------
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CONSENT
The undersigned hereby consents to the filing of its real estate
appraisal for the property identified below as an exhibit to the registration
statement on Form SB-2 filed by American Family Holdings, Inc. with the
Securities and Exchange Commission (the "Registration Statement") and to the
reference to us under the caption "Appraisals and Fairness Opinion" in the
prospectus which is a part of the Registration Statement.
Dated: January 13, 1998
Property: Sacramento/Delta Greens DAVID E. LANE, INC.
By /s/ DAVID E. LANE
--------------------------------
Print Name David E. Lane
-----------------------
Title President
-----------------------
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CONSENT
The undersigned hereby consents to the filing of its real estate
appraisals for the property identified below as an exhibit to the
registration statement on Form SB-2 filed by American Family Holdings, Inc.
with the Securities and Exchange Commission (the "Registration Statement")
and to the reference to us under the caption "Appraisals and Fairness
Opinion" in the prospectus which is a part of the Registration Statement.
Dated: January 13, 1998
Property: Oceanside BOZNANSKI & COMPANY
(Encore and Symphony parcels)
By /s/ CARL W. BOZNANSKI
---------------------------
Print Name Carl W. Boznanski
------------------
Title President
------------------
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CONSENT
The undersigned hereby consents to the filing of its real estate
appraisal for the property identified below as an exhibit to the registration
statement on Form SB-2 filed by American Family Holdings, Inc. with the
Securities and Exchange Commission (the "Registration Statement") and to the
reference to us under the caption "Appraisals and Fairness Opinion" in the
prospectus which is a part of the Registration Statement.
Dated: January 13, 1998
Property: Yosemite/Ahwahnee I and II ARNOLD ASSOCIATES
By /s/ R. W. ARNOLD
-----------------------
Print Name R. W. Arnold
---------------
Title Owner
---------------
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CONSENT
The undersigned hereby consents to the filing of its real estate
appraisal for the property identified below as an exhibit to the registration
statement on Form SB-2 filed by American Family Holdings, Inc. with the
Securities and Exchange Commission (the "Registration Statement") and to the
reference to us under the caption "Appraisals and Fairness Opinion" in the
prospectus which is a part of the Registration Statement.
Dated: January 13, 1998
Property: Mori Point PKF CONSULTING
By /s/ THOMAS E. CALLAHAN
---------------------------
Print Name Thomas E. Callahan
-----------------------
Title Executive Vice President
-----------------------
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CONSENT
The undersigned hereby consents to the filing of its real estate
appraisal for the property identified below as an exhibit to the registration
statement on Form SB-2 filed by American Family Holdings, Inc. with the
Securities and Exchange Commission (the "Registration Statement") and to the
reference to us under the caption "Appraisals and Fairness Opinion" in the
prospectus which is a part of the Registration Statement.
Dated: January 13, 1998
Property: Yosemite/Ahwahnee I and II THE MENTOR GROUP
By /s/ DAVIS R. BLAINE
-------------------------
Print Name Davis R. Blaine
-----------------
Title Chairman
-----------------
