AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1997.
REG. 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
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)
First American Railways, Inc.,
Employee Stock Purchase Plan
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(Full title of the Plan)
DONALD P. CUMMING
3700 North 29th Avenue, Suite 202
Hollywood, Florida 33020
(Name and address of agent for service)
(954) 920-0606
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(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
CALCULATION OF REGISTRATION FEE
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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
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Common Stock 1,000,000 $2.625 $2,625,000 $795.38
$.001
par value
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(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 prices for the Registrant's Common Stock on May 29,
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 quarterly report on Form 10-QSB for the
quarter ended March 31, 1997.
(c) The description of the Registrant's Common Stock contained
in its Registration Statement on Form 8-A, filed with the Commission on May 17,
1996.
All documents filed by the Registrant pursuant to Sections 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.
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
<PAGE>
advanced should it be ultimately determined that such person is not
entitled to indemnification.
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 summaries are necessarily subject to the complete text of
the By-Laws referred to above and are qualified in their 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.
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
<PAGE>
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, 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.
<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 2nd day of June, 1997.
FIRST AMERICAN RAILWAYS, INC.
BY:/S/ DONALD P. CUMMING
------------------------------------------------
DONALD P. CUMMING,
VICE PRESIDENT, SECRETARY,
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.
SIGNATURES TITLE DATE
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/S/ ALLEN C. HARPER CHAIRMAN OF THE BOARD JUNE 2, 1997
- ----------------------- AND CHIEF EXECUTIVE
ALLEN C. HARPER OFFICER (PRINCIPAL
EXECUTIVE OFFICER)
/S/ RAYMOND MONTELEONE DIRECTOR, PRESIDENT AND JUNE 2, 1997
- ----------------------- CHIEF OPERATING OFFICER
RAYMOND MONTELEONE
<PAGE>
/S/ DONALD P. CUMMING VICE PRESIDENT, JUNE 2, 1997
- ----------------------- SECRETARY, TREASURER AND
DONALD P. CUMMING ACTING CHIEF FINANCIAL
OFFICER (PRINCIPAL
FINANCIAL AND ACCOUNTING
OFFICER)
/S/ THOMAS G. RADER DIRECTOR JUNE 2, 1997
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THOMAS G. RADER
/S/ DAVID H. RUSH DIRECTOR JUNE 2, 1997
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DAVID H. RUSH
/S/ LUIGI SALVANESCHI DIRECTOR JUNE 2, 1997
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LUIGI SALVANESCHI
/S/ GLENN P. MICHAEL DIRECTOR JUNE 2, 1997
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GLENN P. MICHAEL
/S/ ALBERT B. AFTOORA DIRECTOR JUNE 2, 1997
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ALBERT B. AFTOORA
/S/ CHARLES E. BRADSHAW JR. DIRECTOR JUNE 2, 1997
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CHARLES E. BRADSHAW, JR.
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------- ----------- ----------
5 Opinion of Olle, Macaulay & Zorrilla, P.A.
23.1 Consent of Olle, Macaulay & Zorrilla, P.A.
(contained in Exhibit 5 of this
Registration Statement).
23.2 Consent of BDO Seidman, LLP.
OLLE, MACAULAY & ZORRILLA, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
(305) 358-9200
FAX (305) 358-9617
June 2, 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 1,000,000 shares of
the Company's Common Stock, $0.001 par value per share (the "Common Stock"),
that are offered pursuant to the Company's Employee Stock Purchase Plan (the
"Plan"). You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering of Common Stock pursuant to the Plan.
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
June 2, 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 1,000,000 authorized but unissued shares and/or treasury shares of Common
Stock from which may be issued the 1,000,000 shares of Common Stock proposed to
be sold pursuant to the Plan. Assuming that the Company maintains an adequate
number of authorized but unissued shares and/or treasury shares of Common Stock
available for issuance to those persons who purchase Common Stock under the Plan
and assuming that the consideration for the shares of Common Stock issued is
actually received by the Company as provided in the Plan, then the shares of
Common Stock issued pursuant to the Plan 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,
OLLE, MACAULAY & ZORRILLA, P.A.
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 BDO SEIDMAN, LLP
May 30, 1997
