UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AFFORDABLE HOMES OF AMERICA, INC.
(Exact name or Registrant as specified in its charter)
Nevada 87-0434297
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) number)
4505 W. Hacienda Ave. Unit I-1
Las Vegas, Nevada 89118
702-579-4888
(Name, address, including zip code, and telephone numbers,
including area code, of agent of service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Securities Amount to Proposed Proposed Amount of
to be registered be Maximum maximum registration
registered offering aggregate fee
(1) price offering
per share price
(2)
<S> <C> <C> <C> <C>
Common Stock 550,000 $2.9375 $1,615,625 $449.14
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act, solely for purposes of determining the registration
fee based on the average of the bid and asked prices of the
Registrant's Shares reported on the OTC Bulletin Board on May 10,
1999.
(3) The amount to be registered includes shares to be issued pursuant
to the grant of incentive awards under the Affordable Homes of
America, Inc. 1998 Stock Incentive/Option Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
1.The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31.1998
2. All other reports filed by the Company pursuant to Section 13(a)
and 15(d) of the 1934 Act since December 31, 1998.
All other documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 ,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or
superseded for the purpose of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated herein by reference
modifies or supersedes such statement. Any statement so modified or
superceded, shall not be deemed except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Nevada law permits a company to indemnify its directors and officers,
except for any act of dishonesty. Affordable Homes of America, Inc.
("AHOA") has provided in its By-Laws that the directors and officers of
AHOA will be indemnified and secured harmless to the full extent permitted
by law out of the assets of AHOA from and against all actions, costs,
charges, losses, damages and expenses incurred by reason of any act done,
concurred in or omitted in or about the execution of their duties or
supposed duties, other than in the case of any fraud or dishonesty. In
addition, AHOA has provided in its by-laws that each shareholder of AHOA
agrees to waive any claim or right to action, individually or in the right
of AHOA against any director or officer or AHOA on account of any action
taken by such director or officer.
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Nevada Law also permits AHOA to purchase insurance for the benefit of
its directors and officers against any liability incurred by them for the
failure to exercise the requisite care, diligence and skill in the exercise
of their power and the discharge of their duties, or indemnifying them in
respect of any loss arising or liability incurred by them by reason of
negligence, default, breach of duty or breach of trust.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
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Exhibit Description
No.
- -------------------------------------------------------------------------------
<S> <C>
4.1 Option Plan, as amended to date
5.1 Opinion of James E. Pratt, Esq.
23.1 Consent of James E. Pratt, Esq.
23.2 Consent of Independent Auditor
24.1 Powers of Attorney
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers of 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) that, for purposes of determining any liability under the Securities
Act, 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 and
(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.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13 (a) or 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.
Insofar as the indemnification for liabilities arising under the
Securities Act 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
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 Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in a successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered hereunder, the
Registrant will, unless in the opinion of its counsel the question has
already been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of 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.
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the
Registrant, Affordable Homes of America, Inc., a corporation organized and
existing under the laws of the State of Nevada, 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 Las Vegas, State of Nevada, on this 10th day of May, 1999.
AFFORDABLE HOMES OF AMERICA, INC.
By: /s/ Merle Ferguson
- --------------------------------------
President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Merle Ferguson jointly and
severally, his or her attorney-in-fact and agent, each with the power of
substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement together with exhibits and other documents in
connection therewith, with the Securities and Exchange Commission, granting
to each attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully as he or she might or could do in person,
and ratifying and confirming all that the attorneys-in-fact and agents, or
his or her substitute or 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 dates indicated.
SIGNATURE TITLE
/s/ Merle Ferguson President and Chief Executive Officer
- --------------------------------
/s/ Susan Donohue Secretary
- ---------------------------------
<PAGE>
EXHIBITS
4.1 Incentive and Option Plan, as amended to date
5.1 Opinion of James E. Pratt, Esq.
23.1 Consent of James E. Pratt, Esq.
24.1 Powers of Attorney
<PAGE>
AFFORDABLE HOMES OF AMERICA, INC.
1998
INCENTIVE AND STOCK OPION PLAN
AS AMENDED MAY 10, 1999
1. THE PLAN.
The purpose of the Affordable Homes of America, Inc. (the
"Company")1998 Incentive and Stock Option Plan (the "Plan") is to provide
the Company with a means of attracting and retaining the services of highly
motivated and qualified directors and key personnel.
The Plan is intended to advance the interests of the Company and its
stockholders by affording to key employees, consultants and non-employee
directors, upon whose skill, judgment, initiative and efforts the Company
is largely dependent for the successful conduct of its business, an
opportunity for investment in the Company and incentives inherent in stock
ownership in the Company. The term Company shall include all subsidiaries
of the Company.
2. LEGAL COMPLIANCE
It is the intent of the Plan that it conform in all respects with the
requirements of Rule 16b-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934 ("Rule 16b-3") or, in connection with
Incentive Stock/Options (ISOs),as such term is defined in Section 422 (a)
of the Internal Revenue of 1986 ("the Code") as amended from time to time.
If any aspect of the Plan does not conform to Section 422 (a) of the Code,
as amended from time to time such aspect shall be deemed to be modified,
deleted, or otherwise changed as necessary to insure continued compliance
with such provisions.
3. ADMINISTRATION OF THE PLAN
a. PLAN COMMITTEE.
The Plan shall be administered by a committee (the "Committee").
The members of the Committee shall be appointed from time to time by the
Board of Directors of the Company (the "Board") and shall consist of not
less than three (3) nor more than five (5) persons.
4. COMMITTEE PROCEDURES.
The Committee from time to time may adopt such rules and
regulations for carrying out the purposes of the Plan as it may deem proper
and in the best interests of the Company. The Committee shall keep minutes
of its meetings and records of its actions. A majority of the members of
the Committee shall constitute a quorum for the transaction of any business
by the Committee. The Committee may act at any time by an affirmative vote
of a majority of those members voting. Such vote may be taken at a meeting
which may be conducted in person or telecommunication or by written consent
of Committee members without a meeting.
<PAGE>
5. FINALITY OF COMMITTEE ACTION
The Committee's actions shall be final and conclusive and binding
on all persons, including, without limitations, the Company, its
stockholders, the Committee and each of the members of the Committee, and
the directors, officers, employees and consultants, of the Company, and
their respective successor and interest.
6. NON-LIABILITY OF COMMITTEE MEMBERS.
No Committee member shall be liable for any action or
determination made by him in good faith with respect to the Plan or any
Options granted or shares issued thereunder.
7. NON-EXCLUSIVITY OF THE PLAN
Nothing contained in the Plan is intended to amend, modify, or
rescind any previously approved compensation plans, programs or options
entered into by the Company. This plan shall be construed to be in
addition to and independent of any and all such other arrangements.
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the Stockholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to adopt,
with or without stockholder approval, such additional or other compensation
arrangements as the Board may from time to time deem desirable.
8. GOVERNING LAW.
The Plan and all rights and obligations under it shall be construed and
enforced in accordance with the laws of the State of Nevada.
<PAGE>
EXHIBIT 5.1
(LETTERHEAD)
JAMES E. PRATT,
ATTORNEY AT LAW
195 Kildare Rd.
Garden City, New York, 11530
(516)741-2978 Phone (516) 873-1140 Facsimile
May 10, 1999
Affordable Homes of America, Inc.
4505 W. Hacienda Ave.
Unit I -1
Las Vegas, Nevada 89118
RE: REGISTRATION STATEMENT ON FORM S-8
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and
Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of the a total of 550,000 shares of
your Common Stock (the "shares") reserved for issuance upon exercise of
stock incentives/options issued or to be issued under the 1998 Stock
Incentive/Option Plan, as amended, of Affordable Homes of America, Inc,
(the "Plan"). As your counsel in connection with this transaction, we
have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and
issuance of the shares.
It is our opinion that upon completion of the proceedings being taken in
order to permit such transactions to be carried out in accordance with
the securities laws of the various states, where required, the shares
when issued and sold in the manner described in the Plan and the
Registration Statement will be legally and validly issued, fully paid
and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing
in the Registration Statement,
Very truly yours,
/s/ James E. Pratt
--------------------------------
James E. Pratt, Esq.
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