AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 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 5,516 $2.8375 $15,650 $4.74
$.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
of the high and low sales prices for the Registrant's Common Stock
between August 29, 1997 and 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 27 day of October,
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 OCTOBER 27, 1997
- --------------------------------------- AND CHIEF EXECUTIVE
ALLEN C. HARPER OFFICER (PRINCIPAL
EXECUTIVE OFFICER)
/S/ RAYMOND MONTELEONE DIRECTOR, PRESIDENT AND OCTOBER 27, 1997
- -------------------------------- CHIEF OPERATING OFFICER
RAYMOND MONTELEONE
II-7
<PAGE>
/S/ DONALD P. CUMMING VICE PRESIDENT, OCTOBER 27, 1997
- ----------------------------------- TREASURER AND
DONALD P. CUMMING ACTING CHIEF FINANCIAL
OFFICER (PRINCIPAL
FINANCIAL OFFICER)
/S/ ALBERT B. AFTOORA
- ----------------------------------- DIRECTOR OCTOBER 27, 1997
ALBERT B. AFTOORA
DIRECTOR OCTOBER , 1997
- -----------------------------------
CHARLES E. BRADSHAW, JR.
/S/ GLENN P. MICHAEL DIRECTOR OCTOBER 27, 1997
- -----------------------------------
GLENN P. MICHAEL
DIRECTOR OCTOBER , 1997
- -----------------------------------
THOMAS G. RADER
/S/ DAVID H. RUSH DIRECTOR OCTOBER 27, 1997
- -----------------------------------
DAVID H. RUSH
/S/ LUIGI SALVANESCHI DIRECTOR OCTOBER 27, 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 Wayne Wiggins dated April 22, 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
October 27, 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 3,665 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 Wayne R.
Wiggins, dated April 22, 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
3,665 authorized but unissued shares
<PAGE>
First American Railways, Inc.
Page 2
October 27, 1997
and/or treasury shares of Common Stock from which may be issued the 3,665 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 Mr. Wiggins, 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
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made this 22nd day of
April, 1997, by and between FIRST AMERICAN RAILWAYS, INC., a Nevada corporation
(the "Company"), and WAYNE R. WIGGINS (the "Consultant").
R E C I T A L S:
WHEREAS, the Company is in the process of developing a tourist-oriented
passenger train between Southeast Florida and Orlando, Florida, known as the
Florida Fun-Train; and
WHEREAS, the Company owns The Durango & Silverton Narrow Gauge Railroad
Company ("D&SNG"), which operates an antique railroad located in the
four-corners region of Colorado; and
WHEREAS, the Company desires to engage the Consultant to provide
certain services with respect to the Company's business; and
WHEREAS, the Consultant desires to provide those services to the
Company, all as more specifically set forth below.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties contained, the parties hereby agree as
follows:
1. CONSULTING ENGAGEMENT. The Company hereby engages the Consultant as a
consultant and advisor with respect to the matters specifically set forth
herein, and the Consultant hereby accepts such engagement by the Company.
2. CONSULTING SERVICES. During the term of this Agreement, the
Consultant shall undertake for and on behalf of the Company to produce various
stand alone commercial spots, video presentations and additional commercials,
and, after written request from the Company, an update of the videotapes
referred to above to document the commencement of operations of the Florida
Fun-Train and other related operations of the Company and D&SNG.
<PAGE>
The Consultant and the Company agree to work together to form
the content of these productions.
(x) The Consultant shall:
(i) Consult with the Company through its
designated representatives throughout the
entire production and give the Company the
right to review and approve the work at all
phases, including, without limitation, at
the completion of the following production
phases:
/bullet/ Theme and format development
/bullet/ Script writing
/bullet/ Storyboard (visual content planning)
/bullet/ Narration, music and sound track
(ii) Provide script, storyboard, library music,
videotape and narration.
(iii) Deliver the agreed upon finished products.
(y) The Company shall:
(i) Make its marketing and operations staffs
available, for consultations with the
Consultant, for the purposes of content
development and technical advice.
(ii) Provide necessary and reasonable access and
transportation when requested by the
Consultant.
If and when reasonably requested by the Company, the
Consultant shall provide the Company with a written report on its performance
under this Agreement, documenting its activities.
All work product and finished product will be the exclusive
property of the Company.
The services of the Consultant hereunder are not on a full
time basis and the Company shall have no direction, control of, or interest in,
the Consultant's services which are not covered by the terms of this Agreement.
The Company hereby waives any conflict of interest which now exists or may
hereafter arise with respect to the Consultant's current employment and future
employment.
2
<PAGE>
3. COMPENSATION. In consideration of the consulting services set forth
in paragraph 2, and subject to the terms and conditions set forth herein, the
Company agrees to issue shares of the Company's common stock, par value $.001
per share (the "Shares") in such amounts commensurate with the value of the
services rendered by the Consultant to the Company, based on the then current
fair market value of such Shares of Common Stock. The Company agrees to
immediately register the Shares on Form S-8 under the Securities Act of 1933, as
amended, and thereafter maintain the effectiveness thereof. The Company shall
provide Consultant with evidence that the offering of the Shares has been
registered on Form S-8, or on an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the resale thereof in
accordance with the Securities Act of 1933, as amended.
The Company shall deliver to the Consultant the certificate or
certificates evidencing the appropriate number of Shares to be issued to the
Consultant as provided above, all registered in the name of the Consultant.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company hereby represents and warrants that it has
full power and legal right and authority to execute, deliver and perform under
this Agreement, and that the officers executing this Agreement on behalf of the
Company have full power and authority to do so.
(b) The Company hereby represents and warrants that this
Agreement has been duly authorized by all necessary corporate action, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject only to applicable bankruptcy, insolvency, reorganization or
other similar law relating to or affecting the rights of creditors generally and
to principles of equity.
(c) Neither the execution or delivery of this Agreement, the
issuance or delivery of the Shares, the performance by the Company of its
obligations under this Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a breach of or a
default (with the passage of time or otherwise) under, require the consent or
approval of or filing with any person (other than consents and approvals which
have been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or assets of the
Company pursuant to the charter or bylaws of the Company, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or regulation to which
the Company is a party or to which any such person or any of their respective
properties or assets is subject.
3
<PAGE>
(d) The Company hereby covenants and agrees to indemnify and
hold harmless the Consultant from and against any and all expenses (including
attorney's fees and court costs), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with any action, suit
or proceeding if (i) the Consultant was made a party to such action, suit or
proceeding by reason of the fact that the Consultant rendered services or advice
pursuant to (and not in violation of this Agreement), (ii) the Consultant acted
in a manner reasonably believed by the Consultant to be in (or not opposed to)
the interests of the Company, and (iii) the Consultant had no reasonable cause
to believe its conduct was unlawful.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CONSULTANT.
(a) The Consultant hereby covenants and agrees to indemnify
and hold harmless the Company from and against any and all expenses (including
attorney's fees and court costs), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with any action, suit
or proceeding if (i) the Company was made a party to such action, suit or
proceeding by reason of fact that the Company rendered services or advice in
violation of this Agreement, (ii) the Company acted in a manner reasonably
believed by the Company to be in (or not opposed to) the interests of the
Consultant, and (iii) the Company had no reasonable cause to believe its conduct
was unlawful.
(b) The Consultant hereby represents and warrants that it
shall not be engaged, directly or indirectly, in capital-raising transactions or
stock price promotional activities in connection with the services to be
rendered hereunder.
(c) The Consultant represents and warrants that his
credentials as set forth on the attachment hereto are true and correct.
6. INDEPENDENT CONTRACTOR STATUS. It is expressly understood and agreed
that this is a consulting services agreement only and does not constitute an
employer/employee relationship. Accordingly, the Consultant agrees that the
Consultant shall be solely responsible for the payment of its own taxes or sums
due to the federal, state or local governments, office overhead, worker's
compensation, fringe benefits, pension contributions and other expenses, except
as otherwise specifically provided herein to the contrary. It is further
understood and agreed that the Consultant is an independent contractor and that
the Company shall have no right to control the activities of the Consultant
other than to require the Consultant to provide its consulting services pursuant
to the terms and conditions of this Agreement. Moreover, the Consultant shall
have no authority to bind the Company.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Any notice, request, demand or other
communication required or permitted pursuant to this Agreement shall be in
writing and shall be deemed to have been properly given if delivered in person
or by courier or other recognized overnight carrier, by facsimile
4
<PAGE>
transmission or by certified or registered mail, postage prepaid and return
receipt requested, at the address indicated below or at any other address as may
be designated from time to time by written notice. Notices shall be deemed given
upon delivery:
IF TO COMPANY: FIRST AMERICAN RAILWAYS, INC.
3700 North 29th Avenue
Suite 202
Hollywood, Florida 33020
Attn: Vice President of Marketing & Sales
Facsimile (954) 920-0602
IF TO CONSULTANT: WAYNE WIGGINS
3200 14th Street Causeway
Pompano Beach, Florida 33062
Facsimile (954) 943-1252
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto relating to the subject matter hereof, and
supersedes all prior written or oral agreements, commitments or understandings
with respect to the matters provided for herein, and no modifications shall be
binding unless set forth in writing and duly executed by each party hereto.
(c) EXPENSES. Each of the parties hereto shall bear its own
expenses in connection with the preparation of this Agreement.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, executors,
administrators, and successors, including any corporation with which or into
which either party may be merged or which may succeed to its assets or business.
Notwithstanding the foregoing, the consulting services to be rendered by the
Consultant are not assignable without the express written consent of the
Company.
(e) HEADINGS. The heading or captions of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions hereof.
(f) IDENTIFICATION. Whenever required by the context of this
Agreement, the singular number shall include the plural, the masculine gender
shall include the feminine and the neuter genders, and the work "person" or
"party" shall include a corporation, firm, partnership, proprietorship or other
form of association.
(g) WAIVER. The waiver by any party to this Agreement of a
breach of any provision of this Agreement shall not be deemed a continuing
waiver or a waiver of any subsequent
5
<PAGE>
breach of that or any other provision of this Agreement.
(h) ATTORNEY'S FEES AND COSTS. In the event litigation shall
be necessary to enforce or interpret any of the provisions of this Agreement,
the prevailing party shall be entitled to recover its reasonable attorney's fees
and costs before trial, at trial and on any appellate level.
(i) COUNTERPARTS. For the convenience of the parties hereto,
this Agreement may be executed in one or more counterparts, which shall each be
considered an original. All of the counter-parts shall constitute one and the
same agreement.
(j) SEVERABILITY. If any provision of this Agreement shall be
declared invalid or unenforceable, the remainder of this Agreement will continue
in full force and effect so far as the intent of the parties hereto can be
carried out.
(k) CONSTRUCTION. Should any provision of this Agreement
require judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation hereof.
(l) RECITALS. The recitals set forth at the beginning of this
Agreement are incorporated by reference in, and made a part of, this Agreement.
(m) GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of the day and year first above written.
THE COMPANY:
FIRST AMERICAN RAILWAYS, INC.
BY:/s/ Donald P. Cumming
-------------------------------
NAME: DONALD P. CUMMING
TITLE:VICE PRESIDENT, TREASURER AND
ACTING CHIEF FINANCIAL OFFICER
CONSULTANT:
/s/ Wayne R. Wiggins
-----------------------------------
WAYNE R. WIGGINS
6
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
---------------------
October 27, 1997 BDO SEIDMAN, LLP
