As filed with the Securities and Exchange Commission on September 16, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WESTMARK GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3784149
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
355 N.E. Fifth Avenue Norman J. Birmingham
Delray Beach, Florida 33483 355 N.E. Fifth Avenue
(407) 243-8010 Delray Beach, Florida 33483
(713) 652-2792 (Name, address, including zip code,
(Address, including zip code, and and telephone number, including
telephone number, including area code, of agent for service)
area code of registrant's
principal executive offices)
CONSULTING AGREEMENT
OF ARTHUR PRIESTON
(Full Title of the Plan)
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COPY TO:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
1111 Bagby, 24th Floor
Houston, Texas 77002
Phone (713) 659-1744
Fax (713) 659-2430
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum
TITLE OF Proposed Maximum Aggregate Amount of
SECURITIES TO BE Amount Being Offering Price Offering Registration
REGISTERED Registered(1) Per Share(2) Price(2) Fee
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share.................. 15,000 $1.06 $15,900 $100.00
================================= ====================== ====================== ================= ===================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, on the basis of the last sales
price of the Common Stock as reported by the Nasdaq SmallCap Market on
September 13, 1996.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Westmark Group Holdings, Inc.
("Company" or "Registrant") with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or, either (i) the Company's latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended ("Securities Act") that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (ii) the Company's effective
Registration Statement on Form 10 or Form 10-SB filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
2. All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to the Registration Statement which indicates that
all shares of common stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be a part thereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Company's Certificate of Incorporation, the authorized
capital stock of the Company consists of 60 million shares, of which 50 million
shares are Common Stock and 10 million shares are preferred stock. As of
September 16, 1996, the Company had outstanding 4,175,118 shares of Common Stock
and 118,750 shares of Series A Preferred Stock, 300,000 shares of Series B
Preferred Stock, and 200,000 shares of Series C Preferred Stock held of record
by 14 persons. The Company has reserved 495,433 shares to be issued hereby,
331,905 shares for issuance upon exercise of outstanding options, 666,666 shares
for issuance upon exercise of warrants, and 708,690 shares for issuance upon
conversion of the Series A and Series B Preferred Stock.
The following summary description of the securities of the Company
is qualified in its entirety by reference to the Certificate of Incorporation, a
copy of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to stockholders of the
Company. The holders of Common Stock have the sole right to vote, except as
otherwise provided by law or by the Company's Certificate, including provisions
governing any preferred stock. The Common Stock does not have any cumulative
voting, preemptive, subscription or conversion rights. Election of directors and
other general shareholder action requires the affirmative vote of a majority of
shares represented at a meeting in which a quorum is represented. The
outstanding shares of Common Stock are, and the shares of Common Stock offered
hereby will be, upon payment therefor as contemplated herein, validly issued,
fully paid and non-assessable.
Subject to the rights of any outstanding shares of preferred stock,
the holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. In
the event of liquidation, dissolution or winding up of the affairs of the
Company, the holders of Common Stock are entitled to share ratably in all assets
remaining available for distribution to them after payment or provision for all
liabilities and any preferential liquidation rights of any preferred stock then
outstanding.
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PREFERRED STOCK
The Board of Directors is authorized, without action by the holders
of the Common Stock, to provide for the issuance of the preferred stock in one
or more series, to establish the number of shares to be included in each series
and to fix the designations, powers, preferences and rights of the shares of
each such series and the qualifications, limitations or restrictions thereof.
This includes, among other things, voting rights, conversion privileges,
dividend rates, redemption rights, sinking fund provisions and liquidation
rights which shall be superior to the Common Stock. The issuance of one or more
series of the preferred stock could adversely affect the voting power of the
holders of the Common Stock and could have the effect of discouraging or making
more difficult any attempt by a person or group to attain control of the
Company. The Company has no present plans to issue any additional shares of
preferred stock.
SERIES A PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 200,000 shares of series A
cumulative preferred stock ("Series A Preferred Stock"). In April 1996, an
aggregate of 100,000 shares of Series A Preferred Stock were issued with an
aggregate stated value of $400,000 to Mr. Hollenbeck and an aggregate of 18,750
shares of Series A Preferred Stock were issued to an unaffiliated third party.
The Series A Preferred Stock has a liquidation preference of $4 per share, plus
any accrued unpaid dividends, is redeemable by the Company at a redemption price
of $4 per share, plus accrued unpaid dividends to the date of redemption, after
October 1, 1996 the holder can force redemption by the Company upon the same
redemption terms that the Company possesses, and does not have any voting
rights. The shares of Series A Preferred Stock are convertible into shares of
Common Stock at the lessor or (i) $1.50 or (ii) 84% of the closing bid price on
the day prior to conversion (subject to adjustment).
SERIES B PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 300,000 shares of series B
cumulative preferred stock ("Series B Preferred Stock"). In April 1996, an
aggregate of 300,000 shares of Series B Preferred Stock were issued with an
aggregate stated value of $600,000. The Series B Preferred Stock has a
liquidation preference of $2 per share, plus any accrued unpaid dividends, is
redeemable by the Company at a redemption price of $2 per share, plus accrued
unpaid dividends to the date of redemption, and does not have any voting rights.
The shares of Series B Preferred Stock are convertible by the holders in shares
of Common Stock at the lesser of (i) $2.00 or (ii) 84% of the closing bid price
on the day prior to conversion (subject to adjustment). The shares of Series B
Preferred Stock automatically convert, at the above referenced conversion rate,
into shares of Common Stock in April 1998.
SERIES C PREFERRED STOCK. In March 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 500,000 shares of series C
cumulative preferred stock ("Series C Preferred Stock"). Effective March 1996,
an aggregate of 200,000 shares of Series C Preferred Stock were issued with an
aggregate stated value of $700,000. The Series C Preferred Stock has a
liquidation preference of $3.50 per share, plus any accrued unpaid dividends, is
redeemable by the Company at a redemption price of $3.50 per share, plus accrued
unpaid dividends to the date of redemption, and does not have any voting rights.
After December 15, 1997, the shares of Series C Preferred Stock are convertible
by the holders in shares of Common Stock at the rate of 84% of the closing bid
price on the day prior to conversion (subject to adjustment).
WARRANTS
There are warrants outstanding authorizing the holders to purchase
an aggregate of 666,666 shares of Common Stock, currently exercisable and
expiring between one and eight years from the date of this Prospectus at
exercise prices between $1.00 and $9.00.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Corporation shall 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 (other than 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
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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 such action, suit or proceeding if he acted
in good faith and in a manner 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, shall 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, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall 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 attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
C. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
D. Any indemnification under subsections (A) and (B) (unless
ordered by a court) shall 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 because he has met the
applicable standard of conduct set forth in subsections (A) and (B). Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
E. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by the Certificate of Incorporation. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
F. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
G. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the Certificate of Incorporation.
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H. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
4.1(1) Form of specimen Common Stock
5.1(2) Opinion Regarding Legality
10.1(2) Consulting Agreement of Arthur Prieston
24.1(2) Consent of Comiskey & Company, P.C.
24.2(2) Consent of Brewer & Pritchard, P.C.
(Contained in Exhibit 5.1)
- ---------------------
(1) The information required by this exhibit is incorporated by reference
to the exhibits filed in connection with the Company's Registration
Statement on Form SB-2 (Commission File No. 333-05599)
(2) Filed herewith.
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:
i. To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
ii. 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
iii. To include any additional or changed
material information with respect to the
plan of distribution.
(2) 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 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 liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (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 the 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 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.
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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 authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Delray, State of Florida, on the 16th day of
September, 1996.
Westmark Group Holdings, Inc.
By /s/ MARK SCHAFTLEIN
Mark Schaftlein,
Chief Operating Officer and Director
----------------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ MARK SCHAFTLEIN Director, Chief Operating September 16, 1996
Mark Schaftlein Officer and Chief Financial
Officer (Principal Financial
and Accounting officer)
/s/ NORMAN J. BIRMINGHAM Director September 16, 1996
Norman J. Birmingham
EXHIBIT 5.1
September 13, 1996
Westmark Group Holdings, Inc.
355 N.E. Fifth Avenue
Delray Beach, Florida 33483
Re: Westmark Group Holdings, Inc.
Registration Statement on Form S-8
Gentlemen:
We have represented Westmark Group Holdings, Inc., a Delaware
corporation ("Company"), in connection with the preparation of a registration
statement filed with the Securities and Exchange Commission on Form S-8
("Registration Statement") relating to the proposed issuance of up to 15,000
shares ("Shares") of the Company's common stock, par value $.001 per share
("Common Stock") pursuant to the terms of a Consulting Services Agreement with
Arthur Prieston dated September 3, 1996 ("Plan"). In this connection, we have
examined originals or copies identified to our satisfaction of such documents,
corporate and other records, certificates, and other papers as we deemed
necessary to examine for purposes of this opinion, including but not limited to
the Plan, the Certificate of Incorporation of the Company, the Bylaws of the
Company, and resolutions of the Board of Directors of the Company.
We are of the opinion that the Shares will be, when issued pursuant to
the Plan, legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Very truly yours,
BREWER & PRITCHARD
EXHIBIT 10.1
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement dated September 3, 1996
("Agreement") is by and between, WESTMARK GROUP HOLDINGS, INC. ("Company") and
Arthur Prieston ("Consultant").
WITNESSETH:
WHEREAS, the Company is in the mortgage lending business; and
WHEREAS, Consultant desires to provide certain consulting services to
the Company; and
WHEREAS, the Company and Consultant desire to set forth in writing the
terms and conditions of their agreement and understanding concerning a one year
consulting arrangement; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, and considerations herein contained, the parties hereto
agree as follows:
1. ENGAGEMENT. Subject to the terms and provisions of this Agreement,
the Company hereby engages Consultant, as an independent contractor, to provide
consulting services ("Services") as set forth in Section 2 below. Consultant
hereby accepts such engagement and shall, during the term of this Agreement,
perform the Services as herein provided.
2. SERVICES. Subject to the terms and conditions of this Agreement, the
term "Services" shall mean providing certain consulting services to the Company
as may be mutually agreed upon by the parties, and attached hereto on Exhibit
"A". Consultant agrees to provide such Services on a non-exclusive basis and as
an independent contractor and not as an employee of the Company. Nothing in this
Agreement shall be construed to prevent Consultant from performing services on
behalf of himself or any person or entity.
3. COMPENSATION. For the Services performed by Consultant for the
Company, the Company will pay the Consultant 15,000 shares of common stock of
the Company to be registered pursuant to Form S-8.
4. STATUS REPORTS. For the term of this Agreement, at the Company's
written request, Consultant shall prepare and submit to the Company a written
status report describing the status of any and all projects for which Consultant
has provided Services.
5. TERM. The term of this Agreement shall commence on the date hereof
and shall continue in full force and effect for a period of one year from the
date hereof.
6. AUTHORITY. Consultant understands and agrees that under the terms
and provisions of this Agreement, Consultant is not an employee, representative
or agent of the Company or any of its affiliates and therefore has no power or
authority whatsoever to act on behalf of, or bind the Company or any of its
affiliates, with respect to any matter or contract. Furthermore, this Agreement
1
does not create and shall not be construed to create any joint venture or
partnership relationship between the parties. No officer, employee, agent or
independent contractor of either party or their respective affiliates shall be
deemed at any time to be an employee, servant, agent or contractor of the other
for any purpose whatsoever.
7. CONFIDENTIALITY. In the course of the performance of Consultant's
duties hereunder, Consultant recognizes and acknowledges that Consultant may
have access to certain confidential and proprietary information of the Company
or any of its affiliates. Without the prior written consent of the Company,
Consultant shall not disclose any such confidential or proprietary information
to any person or firm, corporation, association, or other entity for any reason
or purpose whatsoever, and shall not use such information, directly or
indirectly, for Consultant's own behalf or on behalf of any other party.
Consultant agrees and affirms that all such information is the sole property of
the Company and that at the termination and/or expiration of this Agreement, at
the Company's written request, Consultant shall promptly return to the Company
any and all such information so requested by the Company.
The provisions of this Section 7 shall not, however, prohibit
Consultant from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain
other than by acts, omissions or fault of Consultant;
(b) has been furnished or made known to Consultant by third
parties (other than those acting directly or indirectly for or on
behalf of Consultant) as a matter of legal right without restriction on
its use or disclosure;
(c) was in the possession of Consultant prior to obtaining
such information from the Company in connection with the performance of
this Agreement; or
(d) is required to be disclosed by law.
8. MISCELLANEOUS.
(a) ASSIGNMENT. All of the terms, provisions and conditions of
this Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties hereto and their respective
successors and permitted assigns. This Agreement shall not be assigned
or transferred by either party, nor shall any interest herein be
assigned, transferred, pledged or hypothecated by either party without
the prior written consent of the other party.
(b) APPLICABLE LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
2
(c) ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement
constitutes the entire agreement of the parties hereto and expressly
supersedes all prior and contemporaneous understandings and
commitments, whether written or oral, with respect to the subject
matter hereof. No variations, modifications, changes or extensions of
this Agreement or any other terms hereof shall be binding upon any
party hereto unless set forth in a document duly executed by such party
or an authorized agent or such party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
WESTMARK GROUP HOLDINGS, INC.
By_______________________________________
Norman J. Birmingham, President
CONSULTANT
-----------------------------------------
Arthur Prieston
3
EXHIBIT A
Consultant shall assist the Company in legal services.
4
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8 registration
statement of our report, dual dated March 20, 1996 and April 19, 1996, on the
financial statements of Westmark Group Holdings, Inc., and to reference to our
firm under the caption "experts" in the prospectus.
Aurora, Colorado
September 16, 1996 COMISKEY & COMPANY, A
PROFESSIONAL CORPORATION
