As filed with the Securities and Exchange Commission on April 16, 1999
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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COMMERCIAL ASSETS, INC.
(Exact name of registrant as specified in its charter)
Maryland 84-1240911
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3410 South Galena, Suite 210
Denver, Colorado 80237
(Address of principal executive offices)(Zip code)
COMMERCIAL ASSETS, INC.
1998 STOCK INCENTIVE PLAN
(Full title of the plan)
Terry Considine
Chairman of the Board of Directors
and Chief Executive Officer
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
(Name and address of agent for service)
(303) 759-8600
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered (1) Maximum Maximum Registration
Offering Aggregate Fee (2)
Price Per Offering
Share (2) Price 2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 3,000,000 $4.97 $14,910,000 $4,145
====================================================================================================
</TABLE>
(1) This Registration Statement also covers such additional number of
shares of Common Stock as may become issuable pursuant to the
antidilution adjustment provisions of the Commercial Assets, Inc. 1998
Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 of the rules and regulations under the
Securities Act of 1933, as amended (the "Securities Act"), based on the
average of the high and low sale prices for a share of Common Stock on
the American Stock Exchange on April 15, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part
I of Form S-8 have been or will be sent or given to employees as specified
by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following document filed with the Securities and
Exchange Commission (the "Commission") by the registrant, Commercial
Assets, Inc., a Maryland corporation (the "Company"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
1-2262), are incorporated herein by reference: Annual Report on Form 10-K
for the year ended December 31, 1998;
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered 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 herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document that is or is deemed to be incorporated by reference herein
modifies or supersedes such previous statement. Any statement so modified
or superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company's Charter limits the liability of the Company's
directors and officers to the Company and its stockholders to the fullest
extent permitted from time to time by Maryland law. Maryland law presently
permits the liability of directors and officers to a corporation or its
stockholders for money damages to be limited, except (i) to the extent that
it is proved that the director or officer actually received an improper
benefit or profit in money, property or services for the amount
of the benefit or profit in money, property or services actually received,
or (ii) if a judgment or other final adjudication is entered in a
proceeding based on a finding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. This
provision does not limit the ability of the Company or its stockholders to
obtain other relief, such as an injunction or rescission.
The Company's Charter and Bylaws require the Company to
indemnify its directors, officers and certain other parties to the fullest
extent permitted from time to time by Maryland law. The Maryland General
Corporation Law (the "MGCL") permits a corporation to indemnify its
directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason
of their service to or at the request of the corporation, unless it is
established that (i) the act or omission of the indemnified party was
material to the matter giving rise to the proceeding and (x) was committed
in bad faith or (y) was the result of active and deliberate dishonesty,
(ii) the indemnified party actually received an improper personal benefit
in money, property or services or (iii) in the case of any criminal
proceeding, the indemnified party had reasonable cause to believe that the
act or omission was unlawful. Indemnification may be made against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the director or officer in connection with the proceeding;
provided, however, that if the proceeding is one by or in the right of the
corporation, indemnification may not be made with respect to any proceeding
in which the director or officer has been adjudged to be liable to the
corporation. In addition, a director or officer may not be indemnified with
respect to any proceeding charging improper personal benefit to the
director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or upon a plea of nolo
contendere or its equivalent, or an entry of any order of probation prior
to judgment, creates a rebuttable presumption that the director or officer
did not meet the requisite standard of conduct required for indemnification
to be permitted. It is the position of the Securities and Exchange
Commission that indemnification of directors and officers for liabilities
arising under the Securities Act is against public policy and is
unenforceable pursuant to Section 14 of the Securities Act.
Section 10(4) of the Commercial Assets, Inc. 1998 Stock
Incentive Plan (the "Plan") specifically provides that, to the fullest
extent permitted by law, each of the members of the Board of Directors of
the Company (the "Board"), the Compensation Committee of the Board, and
each of the directors, officers and employees of the Company shall be held
harmless and indemnified by the Company, to the extent permitted by law
with respect to any acts or failures to act, or alleged acts or failures to
act, in connection with the administration of the Plan, made in good faith.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
4 Form of certificate representing Common Stock of the
Registrant (incorporated herein by reference to Exhibit 4.2
to the Quarterly Report on Form 10-Q of the Registrant for
the quarterly period ended March 31, 1994, Commission File
No. 1-22262, filed on May 16, 1994)
5 Opinion of Piper & Marbury L.L.P. regarding the legality of
the securities being registered.
23.1 Consent of Independent Auditors (Ernst & Young LLP).
23.2 Consent of Piper & Marbury L.L.P. (included in their opinion
filed as Exhibit 5).
24 Power of Attorney (included on the signature page of this
registration statement).
Item 9. Required 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.
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 and 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 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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 paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose 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.
(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 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.
(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.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Terry Considine his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said 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 to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
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 Denver, State of Colorado, on the
16th of April, 1999.
COMMERCIAL ASSETS, INC.
By: /s/ Terry Considine
-------------------------
Terry Considine
Chairman of the Board and
Chief Executive Officer
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/ Terry Considine Chairman of the Board, Chief April 16, 1999
- --------------------- Executive Officer and Director
Terry Considine (Principal executive officer)
/s/ Thomas L. Rhodes Vice Chairman of the Board April 16, 1999
- ----------------------- and Director
Thomas L. Rhodes
/s/ Bruce E. Moore President, Chief Operating April 16, 1999
- ----------------------- Officer and Director
Bruce E. Moore
/s/ David M. Becker Chief Financial Officer April 16, 1999
- ----------------------- and Secretary (Principal
David M. Becker financial and accounting
officer)
/s/ Donald L. Kortz Director April 16, 1999
- ---------------------
Donald L. Kortz
/s/ Raymond T. Baker Director April 16, 1999
- -----------------------
Raymond T. Baker
/s/ Robert J. Malone Director April 16, 1999
- -----------------------
Robert J. Malone
/s/ Bruce D. Benson Director April 16, 1999
- -----------------------
Bruce D. Benson
/s/ Thomas C. Fries Director April 16, 1999
- -----------------------
Thomas C. Fries
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
4 Form of certificate representing Common Stock of the
Registrant (incorporated herein by reference to Exhibit
10.15 to the Annual Report on Form 10-K of the
Registrant for the fiscal year ended December 31, 1989,
Commission File No. 1-9360, filed on April 5, 1989)
5 Opinion of Piper & Marbury L.L.P. regarding the legality
of the securities being registered.
23.1 Consent of Independent Auditors (Ernst & Young LLP)
23.2 Consent of Piper & Marbury L.L.P. (included in their
opinion filed as Exhibit 5).
24 Power of Attorney (included on the signature page of
this registration statement).
EXHIBIT 5
[LETTERHEAD OF PIPER & MARBURY L.L.P.]
April 7, 1999
Commercial Assets, Inc.
3410 South Galena, Suite 310
Denver, Colorado 80237
Ladies and Gentlemen:
We have acted as Maryland counsel to Commercial Assets, Inc., a
Maryland corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), pursuant to a
Registration Statement on Form S-8 of the Company (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission"), of up to 3,000,000 shares (the "Shares") of Common Stock,
par value $.01 per share, of the Company to be issued pursuant to the
Commercial Assets, Inc. 1998 Stock Incentive Plan (the "Plan").
In our capacity as Maryland counsel to the Company, we have
examined the Registration Statement, the Charter and By-Laws of the Company
as in effect on the date hereof, the Plan, minutes of the proceedings of
the Company's Board of Directors authorizing the issuance of the Shares
(the "Board Resolutions"), an Officer's Certificate of the Company dated
the date hereof (the "Certificate"), and such other documents as we have
considered necessary. In such examination, we have assumed, without
independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the aforesaid
documents, the authenticity of all documents submitted to us as originals,
the conformity with originals of all documents submitted to us as copies
(and the authenticity of the originals of such copies), and the accuracy
and completeness of all public records reviewed by us. As to factual
matters we have relied on the Certificate.
Based upon the foregoing, having regard for such legal
considerations as we deem relevant, and limited in all respects to
applicable Maryland law, we are of the opinion and so advise you that the
Shares are duly authorized and, upon the issuance and delivery of the
Shares in accordance with the Board Resolutions and the terms set forth in
the Plan, and will be validly issued, fully paid, and non-assessable.
This opinion is solely for the use of the Company in connection
with the Registration Statement. This opinion may not be relied on by any
other person or in any other connection without our prior written approval.
This opinion is limited to the matters set forth herein, and no other
opinion should be inferred beyond the matters expressly stated. We express
no opinion as to the laws of any jurisdiction other than the State of
Maryland. This opinion concerns only the effect of the laws (exclusive of
the securities or "blue sky" laws and the principles of conflict of laws)
of the State of Maryland as currently in effect. We assume no obligation to
supplement this opinion if any applicable laws change after the date hereof
or if any facts or circumstances come to our attention after the date
hereof that might change this opinion.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving our consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Piper : Marbury L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-________) of Commercial Assets, Inc. of our report dated
January 29, 1999 with respect to the consolidated financial statements and
schedules of Commercial Assets, Inc., included in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
April 16, 1999
Denver, Colorado
