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As filed with the Securities and Exchange Commission on April 16, 1998
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONSOLIDATED CAPITAL OF NORTH AMERICA, INC.
(Exact name of issuer as specified in its charter)
Colorado 93-0962072
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(State or other Jurisdiction of) (IRS Employer Identification No.)
410 17th Street, Suite 400
Denver, Colorado 80202
(Address of principal executive offices)
1997 STOCK INCENTIVE PLAN
(Full title of the plans)
DONALD R. JACKSON
Secretary and Treasurer
Consolidated Capital of North America, Inc.
410 17th Street, Suite 400
Denver, Colorado 80202
(Name and address of agent for service)
(888) 313-8051
(Telephone number, including area code, of agent for service)
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Copy to:
BARBARA J. COMLY, ESQ.
Gallagher, Briody & Butler
212 Carnegie Center
Suite 402
Princeton, New Jersey 08540
(609) 452-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share (1) price registration fee
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<S> <C> <C> <C> <C>
Common Stock, 3,000,000 $1.69 $5,070,000 $1,495.65
par value $.0001 per share Shares
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</TABLE>
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for
the purpose of calculating the registration fee, based upon the
average of the reported bid and asked price of shares of Common Stock
on April 9, 1998, as reported on the OTC Bulletin Board.
The shares covered by this Registration Statement are shares to be granted
under the plan described herein or shares issuable upon the exercise of stock
options granted or to be granted under such plan. There are also registered
hereunder such additional indeterminate number of shares as may be issued as a
result of the antidilution provisions of the plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by Consolidated Capital of
North America, Inc. (the "Company") with the Securities and Exchange
Commission, are incorporated by reference in this Registration Statement and
made a part hereof:
(a) The Company' latest annual report, filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual report referred to in (a) above.
(c) The description of the Common Stock of the Company that is
contained in a registration statement filed under the Securities Exchange Act
of 1934, including any amendment or report filed for the purpose of updating
such description.
Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained therein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part hereof.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Sections 7-109-101 to 7-109-110 of the Colorado Business
Corporation Act gives Colorado corporations the power to indemnify their
directors, officers, employees, fiduciaries and agents against liability
incurred in any proceeding to which they are made parties by reason of being or
having served in such capacities, subject to specified conditions and
exclusions set forth in the Act; authorize the payment for or reimbursement of
reasonable expenses incurred by such persons in such proceedings; mandate
indemnification of directors and officers who are successful on the merits; and
permit companies to obtain directors' and officers' liability insurance.
(b) Article IX of the Company's Articles of Incorporation provides
that the Board of Directors of the Company has the power to: (1) indemnify
any director, officer, employee or agent of the Company to the fullest extent
permitted by the Colorado Business Corporation Act; (2) authorize payment of
expenses incurred in defending a civil or criminal action, suit or proceeding
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount
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unless it is ultimately determined that he is entitled to be indemnified by the
Company; and (3) purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Company or who is or
was serving at the request of the Company as a director, officer, employee or
agent of another Company, 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 Company would
have the power to indemnify him against such liability under the provisions of
Article IX of the Company's Articles of Incorporation.
(c) Article XI of the Company's By-Laws provides that the Company
shall indemnify a person made a party to a proceeding because the person is or
was a director or officer against liability incurred in the proceeding if: (i)
the person conducted himself or herself in good faith; and (ii) the person
reasonably believed: (1) in the case of conduct in an official capacity with
the Company, that his or her conduct was in the Company's best interests; and
(2) in all other cases, that his or her conduct was at least not opposed to the
Company's best interests; and (iii) in the case of any criminal proceeding,
the person had no reasonable cause to believe his or her conduct was unlawful.
The Company may not indemnify a director or officer (i) in connection with a
proceeding by or in the right of the Company in which the director or officer
was adjudged liable to the Company; or (ii) in connection with any other
proceeding charging that the director or officer derived an improper personal
benefit, whether or not involving action in an official capacity, in which
proceeding the director was adjudged liable on the basis that he or she derived
an improper personal benefit. The By-Laws provide that the Company shall
indemnify a person who was wholly successful, on the merits or otherwise, in
defense of any proceeding to which the person was a party because the person is
or was a director or officer, against reasonable expenses incurred by him or
her in connection with the proceeding.
Article XI of the Company's By-Laws provides that the Company
may purchase and maintain insurance on behalf of a person who is or was a
director, officer, employee, fiduciary, or agent of the Company or who, while a
director, officer, employee, fiduciary, or agent of the Company, is or was
serving at the request of the Company as a director, officer, partner, trustee,
employee, fiduciary, or agent of another domestic or foreign Company or other
person or of an employee benefit plan, against any liability asserted against
or incurred by the person in that capacity or arising out of his or her status
as a director, officer, employee, fiduciary, or agent, whether or not the
Company would have the power to indemnify the person against the same liability
under Article XI of the Company's By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this
registration statement.
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<CAPTION>
Exhibit Number Exhibit
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<S> <C>
5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of Grant Thornton LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Gallagher, Briody & Butler (included as part of Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page)
</TABLE>
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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 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;
Provided, however, that subparagraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by referenced in
the registration statement.
(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 that remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Denver, Colorado, on this 7th day of April,
1998.
Consolidated Capital of North America, Inc.
By: /s/ PAUL BAGLEY
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Paul Bagley
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and appoints Carl
Casareto, Chief Financial Officer, and Donald R. Jackson, Secretary and
Treasurer and each of such officers acting singly, his true and lawful
attorney-in- fact, in his name, place and stead to execute and cause to be
filed with the Securities and Exchange Commission any or all amendments to this
Registration Statement, with all exhibits and any and all documents required to
be filed with respect thereto, and to do and perform each and every act and
thing necessary to effectuate the same.
<TABLE>
<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ PAUL BAGLEY Chairman and April 7, 1998
- -------------------------- Chief Executive Officer
Paul Bagley (Principal Executive Officer)
/s/ CARL CASARETO Chief Financial Officer April 7, 1998
- -------------------------- (Principal Financial and
Carl Casareto Accounting Officer)
/s/ DONALD R. JACKSON Director April 7, 1998
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Donald R. Jackson
/s/ RICHARD D. BAILEY Director April 7, 1998
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Richard D. Bailey
/s/ L. WAYNE HARBER Director April 7, 1998
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L. Wayne Harber
/s/ JOHN D. McKEY, JR. Director April 7, 1998
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John D. McKey, Jr.
/s/ THOMPSON H. ROGERS Director April 7, 1998
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Thompson H. Rogers
/s/ CHRISTIAN W. WOLF Director April 7, 1998
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Christian W. Wolf
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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5.1 - Opinion of Gallagher, Briody & Butler
23.1 - Consent of Grant Thornton LLP
23.2 - Consent of Arthur Andersen LLP
23.3 - Consent of Gallagher, Briody & Butler (included as part of
Exhibit 5.1)
24.1 - Power of Attorney (included as part of the signature page)
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Exhibit 5.1
March 31, 1998
Consolidated Capital of North America, Inc.
410 17th Street, Suite 400
Denver, Colorado 80202
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE
COMPANY'S 1997 STOCK INCENTIVE PLAN
Dear Ladies and Gentlemen:
We have acted as counsel to Consolidated Capital of North America,
Inc., a Colorado Corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), relating to the offering of up
to 3,000,000 shares of the Company's Common Stock (the "Common Stock"), to be
issued pursuant to the Company's 1997 Stock Incentive Plan (the "1997 Stock
Plan"). We have examined such records, documents, statutes and decisions as we
have deemed relevant in rendering this opinion. In our examination we have
assumed the genuineness of documents submitted to us as originals and the
conformity with the original of all documents submitted to us as copies
thereof.
In our opinion, the shares of the Company's Common Stock to be issued
as share awards or upon exercise of the options granted or to be granted in
accordance with the terms of the 1997 Stock Plan, will be, when issued in
accordance with the terms of the 1997 Stock Plan, validly issued, fully paid
and nonassessable shares of the Common Stock of the Company.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving such opinion, we do not thereby admit that
we are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Securities and Exchange
Commission thereunder.
GALLAGHER, BRIODY & BUTLER
/s/ Gallagher, Briody & Butler
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We have issued our report dated March 21, 1997 accompanying the 1996 financial
statements of Consolidated Capital of North America, Inc. appearing in its
Annual Report on Form 10-KSB for the year ended December 31, 1997, which are
incorporated by reference in this registration statement. We consent to the
incorporation by reference in the registration statement of the aforementioned
report.
/s/ GRANT THORNTON LLP
Los Angeles, California
April 13, 1998
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated March 27,
1998 included in Consolidated Capital of North America, Inc.'s Form 10-KSB for
the year ended December 31, 1997 and to all references to our Firm included in
this registration statement.
/s/ ARTHUR ANDERSEN LLP
Los Angeles, California
April 13, 1998
