As filed with the Securities and Exchange Commission on July 6, 2000.
REGISTRATION STATEMENT NO. 333-_______________
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAHAINA ACQUISITIONS, INC.
(Exact name of Registrant as specified in its Charter)
COLORADO 84-1325695
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5895 Windward Parkway, Suite 220
Alpharetta, Georgia 30005
(770) 754-6140
(Address of Principal Executive Office, including Zip Code)
LAHAINA ACQUISITIONS, INC. AMENDED AND RESTATED 1999 STOCK OPTION PLAN
JULY 1, 1999 CONSULTING AGREEMENT, AS AMENDED
(Full Title of the Plans)
L. Scott Demerau, President and Chief Executive Officer
Lahaina Acquisitions, Inc.
5895 Windward Parkway, Suite 220
Alpharetta, Georgia 30005
(770) 754-6140
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Robert E. Altenbach, Esq.
Kutak Rock
Suite 2100
225 Peachtree St., N.E.
Atlanta, Georgia 30303
(404) 222-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
========================= ====================== ======================= ====================== ======================
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
offering price aggregate offering
Title of securities to Amount to be per unit price Amount of
be registered registered registration fee
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock, no par
value 1,112,500 3.00 $3,337,500 $667.50
========================= ====================== ======================= ====================== ======================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such documents
and the documents incorporated by reference herein pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Lahaina Acquisitions, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K/A for the fiscal year ended
September 30, 1999, filed with the Commission on January 14, 2000 (File No.
000-27480);
(b) The Company's Quarterly Report on Form 10-Q/A for the quarter ended
December 31, 1999, filed with the Commission on February 14, 2000;
(c) The Company's Quarterly Report on Form 10-Q/A for the quarter ended
March 31, 2000, filed with the Commission on April 25, 2000;
(d) The Company's Current Report on Form 8-K/A, dated January 18, 2000
filed with the Commission on March 31, 2000; and
(e) The Company's Current Report on Form 8-K/A, dated March 31, 2000, filed
with the Commission on March 31, 2000.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered hereunder have been
issued or which deregisters all securities offered then remaining unsold, shall
be deemed incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement, including
financial statements, contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superceded
for the purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts or Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Articles of Incorporation limit the
liability of Directors to the maximum extent permitted by Colorado law. Colorado
law provides that a corporation's articles of incorporation may contain a
provision eliminating or limiting the personal liability of directors for
monetary damages for breach of their fiduciary duties as Directors, except for
liability: (i) for any breach of their duty of loyalty to the company or its
shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 7-108-403 of the Colorado Business Corporation Act; or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company's Amended and Restated Articles of Incorporation provide that
the Company shall pay for or reimburse the reasonable expenses incurred by a
Director who is a party to a proceeding in advance of final disposition of the
proceeding, including reasonable expenses incurred by a Director in connection
with the enforcement of this indemnification provision if: (i) the Director
furnishes to the Company written affirmation of the Director's good faith belief
that he or she has met the standard of conduct described in Section 7-109-102 of
the Colorado Business Corporation Act; (ii) the Director furnishes to the
Company a written undertaking, executed personally or on the Director's behalf
to repay the advance if it is ultimately determined that he or she did not meet
the standard of conduct; and (iii) a determination is made that the facts then
known to those making the determination would not preclude indemnification under
Article 109 of the Colorado Business Corporation Act.
The Company's Restated Bylaws provide that the Company shall indemnify its
Directors and Officers and may indemnify its employees and agents to the fullest
extent permitted by law. The Company believes that indemnification under its
Restated Bylaws covers at least negligence and gross negligence on the part of
indemnified parties.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to Directors, Officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
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Item 7. Exemption from Registration Claimed.
With respect to the 400,000 shares of Common Stock originally issued to
Accent Associates, LLC, a Georgia limited liability company, pursuant to the
July 9, 1999 Consulting Agreement as amended, said shares were distributed to
Charles W. Demerau ("Consultant"), the sole member of Accent Associates, LLC in
reliance upon exemption from registration under the Securities Act pursuant to
Section 4(2) thereof. The above-described transaction did not involve any public
offering.
Not applicable with respect to the 762,500 shares of the Company's Common
Stock which may be issued to L. Scott Demerau, Judith Demerau and Betty
Sullivan, Gene Eisenberg, Steve Cunningham and Sherry Sagemiller, each a
resident of the State of Georgia (collectively, the "Option Holders"),
subsequent to the filing of this Registration Statement pursuant to the Lahaina
Acquisitions, Inc. Amended and Restated 1999 Stock Option Plan. Under the terms
and conditions of the Lahaina Acquisitions, Inc. Amended and Restated 1999 Stock
Option Plan, each of the Option Holders shall be granted the right to purchase
the Company's Common Stock as set forth below:
<TABLE>
<S> <C> <C>
L. Scott Demerau 315,625 shares
Judith Demerau 209,375 shares
Betty Sullivan 209,375 shares
Gene Eisenberg 9,375 shares
Steve Cunningham 9,375 shares
Sherry Sagemiller 9,375 shares
</TABLE>
Item 8. Consultants and Advisors.
As a result of an amendment to the Consulting Agreement with Accent
Associates, LLC correcting the number of shares of the Company's Common Stock
issued as compensation from 1,000,000 shares to 1,400,000 shares and pursuant to
this Registration Statement, 350,000 shares are being registered for sale
hereunder. Accent Associates, LLC was retained by Accent Holdings, Inc. ("AHI")
and The Accent Group, Inc. ("AGI") and as a result of the merger with the
Company, Accent Associates, LLC acquired the shares of the Company's Common
Stock.
Pursuant to the Consulting Agreement, the Consultant provided the following
services to or on behalf of AGI and AHI:
Identification of additional real property acquisition targets to provide growth
for the real estate development business (included herein was the procurement
and assignment of options to acquire certain tracts of land).
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<PAGE>
Item 9. Exhibits.
4.1 Lahaina Acquisitions, Inc. Amended and Restated 1999 Stock Option Plan
4.2 July 9, 1999 Consulting Agreement*
4.3 Amendment to Consulting Agreement
5.1 Opinion of Kutak Rock
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Holland Shipes Vann, P.C.
* Incorporated by reference to the relevant exhibit to the Lahaina Acquisitions
In. Registration Statement Filed on Form S-8 (SEC File No. 124169) as filed with
the Securities and Exchange Commission.
Item 10. Undertakings.
The Company hereby undertakes that it will:
(a) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) Reflect in the prospectus any facts or events which, individually or
together, represent a fundamental change in the information in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a twenty percent (20%) change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
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<PAGE>
(iii) Include any additional or changed material information on the plan of
distribution;
provided, however, that the undertakings set forth in paragraph (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Company pursuant to
Section 13(a) or 15(b) of the Exchange Act that are incorporated by reference in
this Registration Statement;
(b) For determining liability under the Securities Act, treat each such
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering;
(c) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's Annual Report
pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities 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 Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a 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 appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
[Remainder of page intentionally left blank.]
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SIGNATURES
The Registrant. 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 Alpharetta, State of Georgia, on
July 6, 2000.
LAHAINA ACQUISITIONS, INC.
/s/ L. Scott Demerau
_____________________________
L. Scott Demerau, President and
Chief Executive Officer
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.
NAME TITLE DATE
/s/ L. Scott Demerau
________________________ Director July 6, 2000
L. Scott Demerau
/s/ Betty Sullivan
________________________ Director July 6, 2000
Betty Sullivan
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<PAGE>
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.
NAME TITLE DATE
/s/ Bart Siegel
________________________ Director July 6, 2000
Bart Siegel
/s/ Sherry Sagemiller
________________________ Director July 6, 2000
Sherry Sagemiller
/s/ Robert E. Altenbach
________________________ Director July 6, 2000
Robert E. Altenbach
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<PAGE>
EXHIBIT INDEX
4.1 Stock Option Plan
4.3 Amendment to Consulting Agreement
5.1 Opinion of Kutak Rock LLP
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Holland Shipes Vann, P.C.
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