AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 14, 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.
OLLE, MACAULAY & ZORRILLA, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------
| Title of | | | Proposed | |
| Securities | Amount | Proposed | Maximum | Amount of |
| to be | to be | Offering Price | Aggregate | Registration |
| Registered | Registered(1) | Per Share (1) | Offering Price(1) | Fee |
- ----------------------------------------------------------------------------------
| | | | | |
<S> <C> <C> <C> <C>
|Common Stock| 91,822 | $2.625 | $241,032.75 | $73.05 |
| $.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 on
July 7, 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.
(b) The Registrant's current report on Form 8-K dated
March 28, 1997.
(c) The Registrant's quarterly report on Form 10-QSB for
the quarter ended March 31, 1996.
(d) The Registrant's current report on Form 8-K/A dated
May 13, 1997.
(e) The Registrant's current report on Form 8-K dated
June 17, 1997.
(f) The Registrant's current report on Form 8-K dated
June 18, 1997.
(g) The Registrant's current report on Form 8-K dated
July 10, 1997.
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,
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
II-3
<PAGE>
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
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.
II-5
<PAGE>
(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 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 July, 1997.
FIRST AMERICAN RAILWAYS, INC.
BY: /S/ DONALD P. CUMMING
----------------------------------
DONALD P. CUMMING, VICE PRESIDENT,
AND ACTING CHIEF
FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/S/ ALLEN C. HARPER CHAIRMAN OF THE BOARD JULY 11, 1997
- ------------------------ AND CHIEF EXECUTIVE
Allen C. Harper OFFICER (PRINCIPAL
EXECUTIVE OFFICER)
/S/ RAYMOND MONTELEONE DIRECTOR, PRESIDENT AND JULY 11, 1997
- ------------------------ CHIEF OPERATING OFFICER
Raymond Monteleone
II-7
<PAGE>
/S/ DONALD P. CUMMING VICE PRESIDENT, JULY 11, 1997
- -------------------------- AND ACTING CHIEF
Donald P. Cumming FINANCIAL OFFICER
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
/S/ ALBERT B. AFTOORA DIRECTOR JULY 11, 1997
- --------------------------
Albert B. Aftoora
DIRECTOR
- ---------------------------
Charles E. Bradshaw, Jr.
/S/ GLENN P. MICHAEL DIRECTOR JULY 11, 1997
- ------------------------
Glenn P. Michael
DIRECTOR
- ------------------------
Thomas G. Rader
/S/ DAVID H. RUSH DIRECTOR JULY 11, 1997
- ------------------------
David H. Rush
- ------------------------ DIRECTOR
Luigi Salvaneschi
II-8
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5 Opinion of Olle, Macaulay & Zorrilla, P.A.
10.1 Consulting Agreement between the Registrant
and C. Dawson Buck, dated June 24, 1997.
23.1 Consent of Olle, Macaulay & Zorrilla, P.A.
(contained in Exhibit 5 of this
Registration Statement).
23.2 Consent of BDO Seidman, LLP.
II-9
OLLE, MACAULAY & ZORRILLA, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
(305) 358-9200
FAX (305) 358-9617
July 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 91,822 shares of
the Company's Common Stock, $0.001 par value per share (the "Common Stock"),
that are offered pursuant to a Consulting Agreement between the Company and
C. Dawson Buck, dated June 24, 1997 (the "Consulting Agreement"). You have
requested the opinion of this firm with respect to certain legal aspects of the
proposed offering of Common Stock pursuant to such Consulting Agreement.
We have examined original, photostatic or certified copies of such
records of the Company, including the Certificate of Incorporation, the Bylaws
and minutes, the Registration Statement and other documents as we have deemed
relevant and necessary for purposes of the opinions hereinafter 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.
<PAGE>
First American Railways, Inc.
Page Two
July 11, 1997
Based upon the foregoing and subject to the comments and exceptions
noted below, we are of the opinion that the Company presently has available at
least 91,822 authorized but unissued shares and/or treasury shares of Common
Stock from which may be issued the 91,822 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. Buck, 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 rules and regulations of the Commission thereunder.
Very truly yours,
/s/ OLLE, MACAULAY & ZORRILLA, P.A.
-----------------------------------
Olle, Macaulay & Zorrilla, P.A.
FIRST AMERICAN
RAILWAYS, INC.
June 24, 1997
Mr. C. Dawson Buck
Dunsfold Ryse Estate
Chiddingfold Surrey
United Kingdom GU84YA
Dear Dawson,
This letter serves as First American Railway, Inc.'s (FAR's) understanding as
to our agreement concerning your participation in the growth of our Company.
1. Equity Investment:
You will invest $200,000 (U.S.) directly into FAR, receiving common stock
which will be registered within 90 days. This investment will not require
any acquisition brokerage fees since you are purchasing the stock directly
from the Company. The price will be the current market price of the stock
on the date of your execution of this agreement less 15%. It is required
that you remit your funds to FAR within 7 days of the execution date to
ensure compliance with these favorable terms (price, etc.).
In addition, you will be granted, as of the execution date, non-qualified
five-year stock options to purchase 10,000 shares of common stock (subject
to the standard anti-dilution protections) at an exercise price which
is equal to the then current market price. These options will vest over 3
years in one-third increments (3,333 shares) annually--the first year
anniversary occurring one year after the execution date of this agreement.
II. Consulting Services:
A) Sponsorship Program - To solicit, negotiate, and maintain relationships
with associations or corporate sponsors in Europe. In this capacity, you
will utilize leads or suggestions from the President and the Vice
President of Sales and Marketing. You are also expected to generate your
own candidate sponsor targets.
B) Scenic Railroad Acquisition Program - To research, negotiate, and
participate in completion of target acquisition companies in Europe. In
this capacity you will utilize leads or suggestions from the President.
You are also expected to identify your own target companies.
- -----------------------------
3700 North 29 Avenue, Suite 202
Hollywood, Florida 33020
954/920-0606 * Fax: 954/920-0602
<PAGE>
C. Dawson Buck Page 2 June 24, 1997
C) Fun-Train Development Program - To research, identify, and participate
in completion [including negotiation] of new Fun-Train projects in
Europe. In this capacity you will utilize leads or suggestions from the
President. You are also expected to identify your own potential
locations for development.
III. Office, Telephones & Travel/Entertainment Expenses:
You will be reimbursed for all reasonable expenses of this type on a pre-
approved basis. Gordon Downing will work out an appropriate methodology
after execution of this agreement.
IV. Consulting Compensation:
Your compensation, in addition to the stock options, will be:
A) A stipend paid quarterly of $7,500.00 (U.S) [$30,000 per year]
beginning July 1, 1997.
B) 4% of gross margin on collected sponsorship program income.
C) A to-be-determined amount, on a case by case basis, for all
acquisitions or new Fun-Train development activities after FAR
agrees to pursue a transaction.
D) The discounted equity investment opportunity described in (I) above.
E) Stock options described in (I) above will be granted annually.
If this meets with your approval, please execute and date below. We believe you
will rapidly become an important part of our team.
Sincerely,
/s/ Raymond Monteleone
----------------------
Raymond Monteleone
President
RM/pl
Agreed by:
/s/ C. Dawson Buck
- ------------------
C. Dawson Buck
Date: 6-26-97
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.
/s/ BDO SEIDMAN, LLP
--------------------
Miami, Florida BDO SEIDMAN, LLP
July 10, 1997
