AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997.
REG. NO. 333-
--------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST AMERICAN RAILWAYS, INC.
(Exact name of registrant as specified in its charter)
Nevada 87-0443800
(State of incorporation) (I.R.S. Employer Identification Number)
3700 North 29th Avenue, Suite 202
Hollywood, Florida 33020
(Address, including zip code, of Principal Executive Offices)
WRITTEN CONSULTING AGREEMENT
------------------------------
(Full title of the Plan)
DONALD P. CUMMING
Vice President and Acting Chief Financial Officer
3700 North 29th Avenue, Suite 202
Hollywood, Florida 33020
(Name and address of agent for service)
(954) 920-0606
-----------------------------------------------------------
(Telephone number, including area code, of agent for service)
COPIES TO:
DENNIS J. OLLE, ESQ.
ADORNO & ZEDER, P.A.
2601 SOUTH BAYSHORE DRIVE
SUITE 1600
MIAMI, FLORIDA 33133
(305) 858-5555
(305) 858-4777 (FAX)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
TITLE OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE MAXIMUM REGISTRATION FEE
REGISTERED PER SHARE (1) AGGREGATE
OFFERING PRICE(1)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 5,217 $2.875 $15,000 $4.54
$.001 par value
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
and computed in accordance with Rule 457(h) on the basis of the average
market price for the Registrant's Common Stock on September 12, 1997,
as reported by the Nasdaq SmallCap Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement and are made a part hereof:
(a) The Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1996, as filed March 28, 1997.
(b) The Registrant's Current Report on Form 8-K, dated March
13, 1997, as filed March 28, 1997, and as amended by Form 8-K/A as filed May 13,
1997.
(c) The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1997, as filed May 15, 1997.
(d) The Registrant's Notice of Annual Meeting and Proxy
Statement dated May 5, 1997, as filed May 9, 1997.
(e) The Registrant's Current Report on form 8-K, dated June 2,
1997, as filed June 17, 1997.
(f) The Registrant's Current Report on form 8-K, dated June
11, 1997, as filed June 18, 1997.
(g) The Registrant's Current Report on Form 8-K, dated June
30, 1997, as filed July 10, 1997.
(h) The Registrant's Quarterly Report of Form 10-QSB for the
quarter ended June 30, 1997, as filed on August 14, 1997.
(i) The Registrant's Prospectus filed with the Commission on
October 14, 1997 pursuant to Rule 424(b) under the Securities Act of 1933 (which
includes a description of the Registrant's Common Stock).
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment indicating that all of the securities offered hereby
have been sold, or deregistering all such securities then remaining unsold,
II-1
<PAGE>
shall be deemed to be incorporated by reference and to be a part hereof from the
date of filing of such documents. Any statement contained 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 which also is incorporated or deemed incorporated by reference herein
modifies or supersedes such statement. Any such document so modified or
superseded 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.
II-2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Company's Bylaws, the Company is obligated to indemnify
each of its officers and directors to the fullest extent permitted by law with
respect to all liability and loss suffered, and reasonable expenses incurred, by
such person in any action, suit or proceeding in which such person was or is
made or threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the Company. The
Company is also obligated to pay the reasonable expenses of indemnified
directors or officers in defending such proceedings if the indemnified party
agrees to repay all amounts advanced should it be ultimately determined that
such person is not entitled to indemnification.
Section 78.751 of the Nevada General Corporation Law empowers a Nevada
corporation to indemnify any person who was or is, or is threatened to be made,
a party to any threatened, pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding such person had no reasonable cause
to believe his conduct was unlawful. A Nevada corporation may indemnify such
person against expenses including amounts paid in settlement and attorneys' fees
actually and reasonably incurred by such person in connection with actions
brought by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted 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 to the extent the court in
which such action or suit was brought or other court of competent jurisdiction,
shall determine upon application that, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper. To the extent such person has been
successful on the merits or otherwise in defense of any action referred to
above, or in defense of any claim, issue or matter therein, the corporation must
indemnify such person against expenses, including attorneys' fees, actually and
reasonably incurred by such person in connection therewith. The indemnification
and advancement of expenses provided for in, or granted pursuant to, Section
78.751 is not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation of the Registrant or any by-law, agreement, vote of shareholders
or disinterested directors or otherwise. Section 78.751 also provides that a
corporation may maintain insurance against liabilities for which indemnification
is not expressly provided by the statute.
The Company has procured and maintains a policy of insurance under
which the directors and officers of the Company are insured, subject to the
limits of the policy, against certain losses arising from claims made against
such directors and officers, including liabilities under the Securities Act of
II-3
<PAGE>
1933, as amended (the "Securities Act"). 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 Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
The foregoing summary is necessarily subject to the complete text of
the By-Laws referred to above and is qualified in its entirety by reference
thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index which is included in this
Registration Statement following the Signature Page.
II-4
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The 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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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 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 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,
II-5
<PAGE>
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 that Act and will be governed by the final adjudication
of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets 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 Hollywood, Florida, on this 11th day of November,
1997.
FIRST AMERICAN RAILWAYS, INC.
BY:/S/ DONALD P. CUMMING
-------------------------------------
DONALD P. CUMMING, VICE
PRESIDENT, TREASURER AND ACTING CHIEF
FINANCIAL OFFICER
Each person whose signature appears below hereby constitutes and
appoints Raymond Monteleone and Donald P. Cumming, and each of them, with full
power to act without the other, 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 (until revoked in writing) to sign
any and all amendments (including post-effective amendments and amendments
thereto) to this Registration Statement on Form S-8 of the Registrant and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his substitute or substitutes,
may lawfully 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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/S/ ALLEN C. HARPER CHAIRMAN OF THE BOARD NOVEMBER 11, 1997
- --------------------------------------- AND CHIEF EXECUTIVE
ALLEN C. HARPER OFFICER (PRINCIPAL
EXECUTIVE OFFICER)
DIRECTOR, PRESIDENT AND _________________
- -------------------------------- CHIEF OPERATING OFFICER
RAYMOND MONTELEONE
II-7
<PAGE>
/S/ DONALD P. CUMMING VICE PRESIDENT, NOVEMBER 11, 1997
- ----------------------------------- TREASURER AND
DONALD P. CUMMING ACTING CHIEF FINANCIAL
OFFICER (PRINCIPAL
FINANCIAL OFFICER)
/S/ ALBERT B. AFTOORA
- ----------------------------------- DIRECTOR NOVEMBER 11, 1997
ALBERT B. AFTOORA
/s/ CHARLES E. BRADSHAW, JR. DIRECTOR NOVEMBER 11, 1997
- -----------------------------------
CHARLES E. BRADSHAW, JR.
/S/ GLENN P. MICHAEL DIRECTOR NOVEMBER 11, 1997
- -----------------------------------
GLENN P. MICHAEL
DIRECTOR _________________
- -----------------------------------
THOMAS G. RADER
/S/ DAVID H. RUSH DIRECTOR NOVEMBER 11, 1997
- -----------------------------------
DAVID H. RUSH
/S/ LUIGI SALVANESCHI DIRECTOR NOVEMBER 11, 1997
- -----------------------------------
LUIGI SALVANESCHI
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5 Opinion of Adorno & Zeder, P.A.
10.1 Consulting Agreement between the Registrant
and TLK Construction Co. dated September 12, 1997.
23.1 Consent of Adorno & Zeder, P.A.
(contained in Exhibit 5 of this
Registration Statement).
23.2 Consent of BDO Seidman, LLP.
EXHIBIT 5
ADORNO & ZEDER, P.A.
2601 South Bayshore Drive
Suite 1600
Miami, Florida 33133
(305) 858-5555
(305) 848-4777 Fax
November 11, 1997
First American Railways, Inc.
3700 North 29th Avenue
Suite 202
Hollywood, Florida 33020
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to First American Railways, Inc., a Nevada
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission"), under the Securities
Act of 1933, as amended (the "Securities Act"), relating to 5,217 shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), that are
offered pursuant to a Consulting Agreement between the Company and TLK
Construction Co., dated September 12, 1997 (the "Consulting Agreement"). You
have requested the opinion of this firm with respect to certain legal aspects
of the proposed offering of the Common Stock pursuant to such Consulting
Agreement.
We have examined original, photostatic or certified copies of such
records of the Company, including the Articles of Incorporation, the Bylaws and
minutes, the Registration Statement and other documents as we have deemed
relevant and necessary for purposes of the opinions herein set forth. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents and instruments submitted to us as originals and the conformity
to authentic originals of all documents and instruments submitted to us as
certified or photostatic copies. As to various questions of fact material to our
opinions, we have relied upon representations made to us by various officers and
directors of the Company and we have not conducted or received independent
verification of those facts.
Based on the foregoing and subject to the comments and exceptions noted
below, we are of the opinion that the Company presently has available at least
5,217 authorized but unissued shares
<PAGE>
First American Railways, Inc.
Page 2
November 11, 1997
and/or treasury shares of Common Stock from which may be issued the 5,217 shares
of Common Stock proposed to be sold pursuant to the aforementioned Consulting
Agreement. Assuming that the Company maintains an adequate number of authorized
but unissued shares and /or treasury shares of Common Stock available for
issuance to TLK Construction Co., as set forth in such Consulting Agreement and
assuming that the consideration for the shares of Common Stock issued is
actually received by the Company as provided in the Consulting Agreement, then
the shares of Common Stock issued pursuant to the Consulting Agreement will be
duly and validly issued, fully paid and nonassessable.
* * * *
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the
Securities Act or the Commission's rules and regulations thereunder.
Very truly yours,
ADORNO & ZEDER, P.A.
By: /S/ DENNIS J OLLE
-------------------------
Dennis J. Olle
DJO:mor
cc: Donald P. Cumming
EXHIBIT 10.1
THIS AGREEMENT is made by and between First American Railways, Inc.,
3700 North 29 Avenue, Hollywood, Florida (hereinafter designated "Owners") and
TLK Construction Co., Inc., a Florida corporation, having its principal place of
business at 1480 S.W. 154th Avenue, Pembroke Pines, Florida (hereinafter
referred to as "Builder").
R E C I T A L S:
A. Owners are leasing real property located at 3700 North 29 Avenue,
Hollywood, Florida.
B. The Owners are desirous of constructing a commissary on the above
subject property and retaining Builder to advise and assist them in such
endeavor.
C. Builder is and has been a general contractor licensed under the
laws of the State of Florida.
D. Builder agrees to perform the services for the Owners under the
terms and conditions set forth in this Agreement. In consideration of the mutual
promises set forth herein, it is agreed by and between the Owners and the
Builder as follows:
1. NATURE OF EMPLOYMENT. Builder will perform consulting and advisory
services on behalf of the Owners with respect to all matters relating to or
affecting the Owners' construction of the commissary as above referenced. As a
part of Builder's services, Builder shall:
a. Assist Owners in obtaining building permits,
b. Supervise and oversee construction,
c. Act as intermediary between building contractors
employed by Owners and the Owners,
<PAGE>
d. Consult Owners to assure that construction is in accordance
with the plans and specifications provided by Owners, which plans and
specifications are hereby made a part of this Agreement,
e. Recommend contractors for each type of work to be
performed in the construction process,
f. Arrange for and order at the cost of Owners, all materials,
labor, permits, fees and assessments as may be reasonably necessary to complete
construction of the premises, and
g. Provide job superintendent as necessary at cost to Owners.
2. PLACE OF WORK. Builder's services shall be rendered largely at the
above referenced property but Builder will, on request, perform such services at
any other address or other location as may be reasonably necessary to fulfill
the terms and conditions of this Agreement.
3. TIME DEVOTED TO WORK. In the performance of the services, the
aforesaid services and the hours Builder is to work on any given day will be
entirely within Builder's control and Owners will rely upon Builder to put in
such number of hours as are reasonably necessary to fulfill the spirit and
purpose of this contract. The parties agree that the work to be performed shall
be substantially completed within 02 months from the date all necessary permits
are obtained, although at such time of performance may be extended for
reasonable delays caused by acts of God, labor disputes, unavailability of
material or the need by any contractor employed by Owners to re-perform work
that is deemed by Builder to be improper or contrary to the plans and
specifications.
4. PAYMENT. Owners will pay Builder the total sum of 15% of the total
cost of the aforesaid structure, paid in progress payments in accordance with
the attached draw schedule. The
2
<PAGE>
final payment shall be made seven (7) days after the issuance of a Certificate
of Occupancy by the appropriate governmental agency.
5. DURATION. The parties contemplate that such agreement will commence
upon the signing hereof by all parties, that permits had been applied for and
that construction shall commence within two days after the obtaining of such
permits.
Either Party may terminate this contract by giving written notice at
least 24 hours in advance of election to terminate. All fees earned to the date
of termination shall be due and payable as of the date of such early
termination, otherwise this contract shall terminate upon the issuance of a
Certificate of Occupancy and payment of the final draw as hereinabove provided.
(Termination must have just cause).
6. PAYMENT OF OTHER EXPENSES. The Owners shall be responsible for and
shall pay all labor and materials, all fees for permit expenses and assessments
and for all contracts entered into for the construction of said premises. The
Owners shall pay all of such expenses promptly when submitted to Owner by
contractor. Owners shall indemnify and hold harmless contractor for any and all
of such expenses and further shall pay any and all such expenses that are billed
directly from other parties to the Owners. Owner shall provide a current
insurance policy including liability, fire, windstorm and theft.
7. STATUS OF BUILDER. This Agreement calls for the performance of the
services of the Builder as an independent contractor and Builder will not be
considered an employee of the Owners for any purpose.
3
<PAGE>
8. ATTORNEY'S FEES AND COSTS. In the event of any litigation arising
out of this Agreement between the parties, the prevailing party shall be
entitled to an award of reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 12th day of September, 1997.
TLK CONSTRUCTION CO., INC.
By: /s/ Ted L. Kay
----------------------------------
TED L. KAY, PRESIDENT
/s/ Thomas E. Blayney
--------------------------------------
FOR, FIRST AMERICAN RAILWAYS
4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of
First American Railways, Inc.
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of First American Railways, Inc. (the "Company"), of our
report dated January 14, 1997, except for Note 9 which is as of March 13, 1997,
relating to the financial statements of the Company, appearing in the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1996.
Miami, Florida /s/ BDO Seidman, LLP
---------------------
November 11, 1997 BDO SEIDMAN, LLP
