<TABLE>
<CAPTION>
As filed with the Securities and Exchange Commission on July 15, 1998
File No. Commission file number: I-9418
- ----------------- ------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
CyberAmerica Corporation
-----------------------------
(Exact name of registrant as specified in its charter)
Nevada 87-0509512
--------- ------------
(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)
1998 Stock Option Plan of CyberAmerica Corporation
--------------------------------------------------
(Full title of the plan)
LaVonne Frost, 711 S. Carson Street, Suite 1, Carson City, NV 89701
-------------------------------------------------------------------
(Name, address, including zip code, of agent for service)
Telephone number, including area code, of agent for service: (702) 883-5755
--------------
CALCULATION OF REGISTRATION FEE
================================= =============== ======================== ========================= =================
Title of Securities to be Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Aggregate Offering Price Registration Fee
Share(1)
================================= =============== ======================== ========================= =================
<S> <C> <C> <C> <C>
Common Stock, issuable upon 600,000 $.47 $300,000 $88.55
exercise of Options
================================= =============== ======================== ========================= =================
</TABLE>
(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 July 14, 1998, 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>
1998 Stock Option Plan of CyberAmerica Corporation
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 CyberAmerica Corporation, 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, 1997.
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, 1997.
3. The description and specimen certificate of the Common Stock contained
in the Company's Form S-18 Registration Statement filed on January 21, 1986
under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
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. A description of such securities is contained in the
Company's initial Form S-18 Registration Statement filed with the Commission on
<PAGE>
January 21, 1986, and is incorporated herein by reference. (See "Item 3.
Incorporation of Documents by Reference.")
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
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to members of the
board of directors, officers, employees, or persons controlling the Company
pursuant to the immediately subsequent provisions, the Company has been informed
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
The Company's Restated Articles of Incorporation, specifically Article
Eight, however, eliminate the personal liability of the officers and directors
to shareholders or the corporation for money damages to the extent permitted by
Nevada Revised Statutes ("NRS") Section 78.037. NRS Section 78.037 provides that
a corporation may limit or eliminate officers' and directors' personal liability
for breach of fiduciary duty so long as liability is not eliminated or limited
for acts or omissions involving intentional misconduct, fraud or a knowing
violation of law or the payment of unlawful distributions.
Section Eight of Article VI of the Company's Bylaws provides that the
Company shall indemnify its officers and directors for any liability, including
reasonable costs of defense, arising out of any act or omission of any officer
or director on behalf of the Corporation to the fullest extent allowed by the
laws of the State of Nevada.
In actions, proceedings and suits involving an officer or director because
of their being or having been an officer or director, other than actions by or
in the right of the corporation, NRS Section 78.751 (the "Nevada Statute")
permits a corporation to indemnify directors or officers against actual and
reasonable expenses, including attorney fees, judgments, fines and amounts paid
in settlement. The Nevada Statute applies to actions, proceedings or suits
whether civil, criminal, administrative or arbitrative in nature. However,
unless a court directs otherwise, indemnification is permissible only if the
officer or director meets the applicable standard of conduct and indemnification
is proper under the circumstances. In civil cases, the standard of conduct
requires the officer or director to act in good faith and in a manner he or she
reasonably believes to be in or not opposed to the best interests of the
Company. In criminal cases, an officer or director meets the standard of conduct
if they had no reasonable cause to believe his or her conduct was unlawful. The
board of directors acting through a quorum of disinterested directors,
independent legal counsel designated by the board of directors, or the
shareholders shall determine whether indemnification is proper under the
circumstances. Termination of proceedings by judgment, order, settlement,
conviction or plea of no contest or its equivalent, does not of itself establish
a presumption that the officer or director did not meet the applicable standard
of conduct.
<PAGE>
In actions by or in the right of the Company, the Company may indemnify an
officer or director against expenses provided he or she satisfies the applicable
standard of conduct. However, the Company cannot indemnify an officer or
director adjudged liable to the corporation on any claim, issue or matter
unless, and to the extent, the court determines that despite the adjudication of
liability, and in light of all the circumstances, the officer or director is
fairly and reasonably entitled to indemnity for expenses.
In all proceedings,whether by or in the right of the Company or otherwise,
the Nevada Statute requires indemnification to the extent the officer or
director is successful on the merits or otherwise in defense of the proceeding
or in defense of any claim, issue or matter therein. A Nevada corporation may
provide, either in its articles, bylaws or agreements, that the corporation
shall pay the expenses on behalf of a director or officer prior to the final
disposition of the action upon receipt of an undertaking by or on behalf of the
director or officer to repay those advancements if it is ultimately determined
that the officer or director is not entitled to indemnification. The Nevada
Statute does not exclude other indemnification rights to which a director or
officer may be entitled under the articles of incorporation, the bylaws, an
agreement, a vote of shareholders or disinterested directors, or otherwise;
provided that those rights would not indemnify an officer or director against a
judgment or other final adjudication adverse to the officer or director that
establishes the officer's or director's acts or omissions involved intentional
misconduct, fraud or known violation of the law and were material to the cause
of action.
The foregoing discussion of indemnification merely summarizes certain
aspects of indemnification provisions and is limited by reference to the NRS
Section 78.751, Article VI, Section 8 of the Company's Bylaws, as amended, and
Article Eight of the Company's Restated Articles of Incorporation.
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 7.
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 of 1933, 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.
<PAGE>
(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 of 1933, 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
Securities Exchange Act of 1934) 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
of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
SIGNATURES
Pursuant to 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 S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah, on July 13, 1998.
CyberAmerica Corporation
By: /s/ Richard Surber
-------------------
Richard D. Surber as President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard D. Surber with power of substitution, as
his attorney-in-fact for him, in all capacities, to sign any amendments to this
registration statement and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorney-in-fact or his
substitutes may do or cause to be done by virtue hereof.
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 President, CEO and Director July 13, 1998
- ----------------------
Richard D. Surber
/s/ Wayne Newton Controller July 13, 1998
- ----------------------
Wayne R. Newton
/s/ Adrienne Bernstein Director July 13, 1998
- ----------------------
Adrienne Bernstein
/s/ Philip Lamb Director July 13, 1998
- ----------------------
Philip Lamb
<PAGE>
As filed with the Securities and Exchange Commission on July 15, 1998
File No.
- ------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
CyberAmerica Corporation
(A Nevada corporation)
-------------
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibits SEC Ref. No. Description of Exhibit Sequentially
Numbered Pages
- -------- ------------ ---------------------- --------------
A 4 1998 Stock Option Plan of the Company 9
B 5, 23(b) Opinion and consent of Counsel with
respect to the legality of the issuance 13
of securities being issued
C 23(a) Consent of Accountant 16
THE 1998 STOCK OPTION PLAN
OF
CYBERAMERICA CORPORATION
<PAGE>
THE 1998 STOCK OPTION PLAN OF CYBERAMERICA CORPORATION
CyberAmerica Corporation, a Nevada corporation (the "Company"), hereby
adopts The 1998 Stock Option Plan of CyberAmerica Corporation (the "Plan") this
13th day of July 1998. Under the Plan, the Company may 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 ("Options"). In addition, at the discretion of the Board of
Directors, Options 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.
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 Options.
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 Option approved
by a majority vote of those Plan Administrators attending a duly and properly
held meeting shall be valid. Any Option 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 six hundred thousand
(600,000) shares of Stock may be subject to, or issued pursuant to, Options
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>
5. Eligibility. The Plan Administrators may grant Options 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. Options 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 and Certain Limitations on Right to Exercise.
a. Each 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.
<PAGE>
9. Withholding. If the grant or exercise of an Option 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 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. Options to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Options
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 Options 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 600,000th 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; provided, however, that to the extent such amendment or modification
would cause this Plan to no longer comply with the applicable provisions of the
Code governing incentive stock options as they may be amended from time to time,
such amendment or modification shall also be approved by the shareholders of the
Company.
ATTEST:
/s/ Richard Surber
- ------------------
Richard D. Surber, President and CEO
GERALD EINHORN
268 West 400 South
Salt Lake City, Utah 84101
Tel. (801) 575-8073/Fax (801) 575-8092
July 6, 1998
Board of Directors
CyberAmerica Corporation
268 West 400 South
Salt Lake City, Utah 84101
Re: Form S-8 Registration Statement
Dear Sirs:
CyberAmerica Corporation, a Nevada corporation (the "Company"), has informed me
of its intention to file with the Securities and Exchange Commission ("SEC"), on
or about July 7, 1998, a registration statement on Form S-8 under the Securities
Act of 1933, as amended ("Registration Statement"), concerning the issuance of
600,000 shares (the "Shares") of the Company's common stock, par value $0.001
("Common Stock"), pursuant to a Benefit Plan entitled "1998 Stock Option Plan of
CyberAmerica Corporation" (the "Benefit Plan"). In connection with the filing of
the Registration Statement, you have requested my opinion, as a member of the
Law Department of the Company, regarding the validity of the issuance of such
Shares.
This opinion letter (this "Opinion") is governed by, and shall be interpreted in
accordance with the Legal Opinion Accord (the"Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications and limitations, all as more particularly described in the
Accord, and this Opinion should be read in conjunction therewith.
In connection with the preparation of this Opinion, I have examined the
following:
1. The Company's Articles of Incorporation and Bylaws;
2. The Registration Statement;
3. Theauthorization and approval by the Company's Board of Directors of
the Company's Benefit Plan concerning the Shares and Registration
Statement;
4. The Company's Section 10(a) Prospectus for the Registration Statement;
5. The Company's most recently filed Form 10-KSB and any subsequently
filed reports on Form 10-QSB;
6. Such other documents as I have deemed necessary for the purposes of
this Opinion.
For the purposes of rendering this opinion, I 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.
Furthermore, I express no opinion as to the validity of any of the assumptions,
form or content of any financial or statistical data in the Registration
Statement.
<PAGE>
In expressing the opinion set forth herein, I have assumed the authenticity and
completeness of all corporate documents, records and instruments provided to me
by the Company and its representatives. I have assumed the accuracy of all
statements of fact contained therein. I have assumed that the information
provided to me by the Company is correct and that there are shares available to
be issued pursuant to the Benefit Plan. I have further assumed the genuineness
of signatures (both manual and conformed), the authenticity of documents
submitted as originals, the conformity to originals of all copies or faxed
copies and the correctness of all such documents. This opinion is conditioned on
all of these assumptions being correct.
Based on the above examination and to the best of my knowledge, I am of the
opinion that, when issued and sold, the Shares will be validly and legally
issued; provided, however, that no opinion is rendered under the document
regarding compliance with federal or state securities or blue sky laws. I am of
the further opinion that, when issued and sold, the Shares will be fully paid
and nonassessable. This Opinion is conditioned upon the above requirements being
met.
The opinion set forth above is predicated upon and limited to the correctness of
the assumptions set forth herein and in the Accord, and is further subject to
qualifications, exceptions and limitations set forth below:
A. Certain of the remedial provisions of the Benefit Plan may be further
limited or rendered unenforceable by other applicable laws and
interpretations.
B. I expressly except from the opinion set forth herein any opinion or
position as to whether or to which extent a Utah court or any other
court would apply Utah 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 the opinion herein contained.
C. To the extent any opinion set forth above is qualified by reference to
my knowledge, my knowledge is based solely on my examination of the
items set forth in Paragraphs (1) through (6) above.
D. In rendering the opinion that the shares of Common Stock to be
registered pursuant to the Registration Statement and issued under the
Benefit Plan will be validly issued, fully paid and nonassessable, 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.
E. The opinion set forth herein, insofar as it relates to specific
agreements or documents, relates to the specified agreements or
documents and to the exhibits or schedules referred to in this Opinion
and attached to such agreements or documents at the time of my
examination of such agreements or documents. Said opinion does not
extend to documents, agreements or instruments referred to in said
<PAGE>
agreements or documents (even if incorporated therein by reference), or
to any exhibits, annexes or schedules that are not identified in this
Opinion.
F. I expressly except from the opinion set forth herein any opinion
concerning the need for compliance by any party, and in particular by
the Company, with the provisions of the securities laws, regulations
and/or rules of the United States of America, the State of Utah or any
other jurisdiction with regard to any other issue not expressly
addressed herein, which exclusion shall apply, but not be limited to,
the subsequent tradeability of the Shares on either state or Federal
level.
G. I expressly except from the opinion set forth herein any opinion
concerning the adequacy or compliance with any laws, Federal or state,
of the Company's Form S-8 or any of its exhibits not expressly authored
by me.
This Opinion may be relied upon by you only in connection with filing of the
Registration Statement and I hereby consent to the use of it as an exhibit to
the Registration Statement. This Opinion may not be used or relied upon by you
or any other person for any purpose whatsoever, except to the extent authorized
in the Accord, without in each instance my prior written consent.
My opinion is limited to the specific positions expressed above. No other
opinions are intended to be inferred therefrom. This opinion is addressed to and
is for the benefit solely of the Company and no other person or persons shall be
furnished a copy of this opinion or are entitled to rely on the contents herein
without my express written consent. In the event that any of the facts are
different from those which have been furnished to me and upon which I have
relied, the conclusions as set forth above cannot be relied upon.
The opinions contained in this letter are rendered as of the date hereof, and I
undertake no, and disclaim any, obligation to advise you of any changes in or
any new developments which might affect any matters or opinions set forth
herein.
Sincerely,
/s/ Gerald Einhorn
- ------------------
Gerald Einhorn (Admitted to Practice in New York State Only)
A Partnership of CROUCH, BIERWOLF & CHISHOLM Office (801)363-1175
Professional Corporations Certified Public Accountants Fax (801)363-0615
Brent E. Crouch, CPA, PC 50 West Broadway, Suite 1130 Mobile (801)971-0404
Nephi J. Bierwolf, CPA, PC Salt Lake City, Utah 8410 Mobile (801)971-0405
Todd D. Chisholm, CPA, PC Mobile (801)699-2180
- --------------------------------------------------------------------------------
We hereby consent to the use of our audit report of CyberAmerica Corporation and
subsidiaries dated April 23, 1998 for the year ended December 31, 1997 in the
Form S-8.
/s/ Crouch, Bierwolf & Chisholm
- -------------------------------
Salt Lake City, Utah
July 14, 1998
- --------------------------------------------------------------------------------
MEMBER AMERICAN INSTITUTE OF CPA, SEC PRACTICE SECTION, AND UTAH ASSOCIATION OF
CPAS
