As filed with the Securities and Exchange Commission on October 17, 1995.
Registration No. 33-93694
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
HENG FAI CHINA INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 93-063633
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
650 West Georgia Street, Suite 588, Vancouver, B.C., Canada V68 4N8;
Phone: (607) 685-8318
(Address of Principal Executive Offices)
Amended and Restated Consulting Agreement by and among
Heng Fai China Industries Inc.,
Jarrix Global Enterprises, Inc. and Jason H. Pollak
(Full title of plan)
The Prentice Hall Corporation System, Inc.
32 Loockerman Square, Suite L-100, Dover, DE, 19901 (302) 674-1221
(Name, address and telephone number of agent for service)
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933 check the following box: [X]
Copies to:
Victoria A. Baylin, Esquire
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W., Suite 400
Washington, D.C. 20036-2492
(202) 659-0494
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration
to be Registered Registered Share Price(1) Fee1
- -------------------------------------------------------------------------------------------------------------
Common Stock(2) 260,000 $5.81 $1,510,600 $520.90
Common Stock(3) 240,000 $5.81 $1,394,400 $480.83
=============================================================================================================
Total* $1,000.73*
=============================================================================================================
<FN>
* Previously Paid.
(1) The offering price per share has been calculated in accordance with Rule
457(h) under the Securities Act of 1933 based upon the average of the bid
and asked prices of the Common Stock on June 15, 1995.
(2) Represents shares of Common Stock issuable to Jason H. Pollak pursuant to
the terms of the Amended and Restated Consulting Agreement (referenced
above) upon execution thereof which is to occur at or about the time of
filing and effectiveness of this Registration Statement on Form S-8.
(3) Represents shares of Common Stock issuable to Jason H. Pollak pursuant to
the terms of the Amended and Restated Consulting Agreement (referenced
above).
</FN>
PART I
Item 1: Plan Information.
This Registration Statement (the "Registration Statement") relates to
the issuance of shares of common stock, par value $.01 per share (the "Common
Stock") of Heng Fai China Industries, Inc. (the "Company") to Jason H. Pollak
(the "Consultant") pursuant to the terms of an Amended and Restated Consulting
Agreement, dated as of the date hereof, by and among the Company, Jarrix Global
Enterprises, Inc. and the Consultant (the "Consulting Agreement"). Pursuant to
the terms of the Consulting Agreement, the Company is obligated to issue to the
Consultant an aggregate of up to 500,000 shares of Common Stock in exchange for
the Consultant's providing certain marketing and consulting services to the
Company. Pursuant to the terms of the Consulting Agreement, the initial term of
the Consulting Agreement is twelve months, subject to termination by the Company
upon delivery (15 days in advance) of written notice to the Consultant.
The foregoing information relating to the provisions of the
Consulting Agreement is intended to provide a summary thereof and does not
purport to be a complete description of the Consulting Agreement. Such summary
should be read in conjunction with the Consulting Agreement which has been filed
as Exhibit 10.1 hereto and is incorporated herein by reference in its entirety.
Item 2: Registrant Information and Employee Plan Annual Information.
The Consultant has been provided with copies of the documents
incorporated herein by reference in Part II: Item 3 hereof and has been advised
by the Company in writing that such documents will continue to be available,
without charge, to the Consultant upon the Consultant's written request to the
Company at its offices at 650 West Georgia Street, Suite 588, Vancouver, B.C.
Canada V68 4N8 (Phone: (607) 685-8318).
PART II
Item 3: Incorporation of Documents by Reference.
The following materials are incorporated by reference herein in their
entirety:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 filed with the Securities and Exchange Commission on
April 28, 1995 (File No. 0-7619);
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995 filed with the Securities and Exchange Commission on May 17, 1995
(File No. 0-7619);
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(c) all other documents filed by the Company after the date of this
Registration Statement under Sections 13(a), 13(c), 14 and 15(d) of the
Securities and Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration Statement that registers securities covered
hereunder that remain unsold; and
(d) the description of the Common Stock as set forth in the Form 10,
filed with the Securities and Exchange Commission on February 19, 1974 on behalf
of Alpine-California (as defined below), as the same has been or may hereafter
be amended (File No. 0-7619), is incorporated herein by reference in its
entirety. In connection therewith, the following description is provided:
The Common Stock was initially registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended, on February 19, 1974 on the Form 10
referenced above on behalf of Alpine International Corporation, a California
corporation ("Alpine-California"), formerly the parent of Alpine Merger
Corporation, a Delaware corporation ("Alpine-Delaware") which changed its name
to Heng Fai China Industries, Inc. (previously defined herein as the "Company").
The Company is currently authorized to issue up to 30,000,000 shares of Common
Stock, par value $.01 per share and 500,000 shares of preferred stock, par value
$10 per share. As of the date hereof there are 10,384,542 shares of Common Stock
issued and outstanding and no shares of preferred stock are outstanding.
Holders of the Common Stock are entitled to one vote per share on
each matter submitted to vote at any meeting of shareholders. Shares of Common
Stock do not carry cumulative voting rights and therefore, holders of a majority
of the outstanding shares of Common Stock will be able to elect the entire board
of directors of the Company and, if they do so, minority shareholders would not
be able to elect any members to the Company's board of directors. The Company's
board of directors has authority, without action by the Company's shareholders,
to issue all or any portion of the authorized but unissued shares of Common
Stock, which would have the effect of reducing the percentage of securities
ownership of the Company's shareholders and diluting the book value of the
Common Stock.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock. The Common Stock is not subject to redemption
and carries no subscription or conversion rights. In the event of liquidation of
the Company, the holders of shares of Common Stock are entitled to share equally
in corporate assets after the holders, if any, of preferred stock and after
satisfaction of liabilities. Holders of Common Stock are entitled to receive
such dividends as the Company's board of directors may from time to time declare
out of funds legally available for the payment thereof. The Company has never
paid cash dividends on its Common Stock and does not anticipate that it will pay
cash dividends thereon in the foreseeable future.
Item 4: Description of Securities.
Not applicable.
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Item 5: Interests of Named Experts and Counsel.
Not applicable.
Item 6: Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors
and officers provided that such provision shall not eliminate or limit the
liability of a director: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) arising under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers of a corporation may be entitled
under the corporation's bylaws, any agreement, vote of shareholders or
otherwise.
Article Tenth of the Company's Certificate of Incorporation
eliminates the personal liability of directors to the fullest extent permitted
by Section 102(b)(7) of the Delaware Corporation Law.
The effect of the foregoing is to require the Company to indemnify
the officers and directors of the Company for any claim arising against any such
person in his official capacity if such person acted in good faith and in a
manner that such person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING
THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE COMPANY HAS BEEN INFORMED
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.
Item 7: Exemption from Registration Claimed.
Not applicable.
3
Item 8: Exhibits.
The following exhibits are attached hereto:
Exhibit No. Description of Exhibit Page No.
- ----------- ---------------------- --------
* 5.1 Opinion letter of De Martino Finkelstein Rosen & Virga
*10.1 Amended and Restated Consulting Agreement, dated as of the
date hereof, by and among Heng Fai China Industries, Inc.,
Jarrix Global Enterprises, Inc. and Jason H. Pollak.
*23.1 Consent of De Martino Finkelstein Rosen & Virga, included in
the Opinion of Counsel filed as Exhibit 5.1.
23.2 Consent of Deloitte & Touche
- -----------------
* Previously Filed.
Item 9: Undertakings.
(a) Undertakings Pursuant to Rule 415 under the Securities Act of
1933. The Company hereby undertakes that it will:
(1) File, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: to include any
additional or changed material information with respect to the plan of
distribution not previously disclosed in this Registration Statement;
(2) 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) 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) Undertaking Relating to Filings Incorporating by Reference
Subsequent Exchange Act Documents. The Company hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Company's annual report pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) 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.
4
(c) Undertaking Specific to Filing of Registration Statement of Form
S-8. Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, 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 of 1933, as amended and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer, or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, as amended, and will be governed by
final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Amended 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 Hong Kong, China on this 6th day of October,
1995.
HENG FAI CHINA INDUSTRIES, INC.
By: /s/ Heng Fai Chan
----------------------------
Heng Fai Chan, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated below.
Signature Title Date
--------- ----- ----
/s/ Heng Fai Chan
- ------------------------------------ President, October 6, 1995
Heng Fai Chan Chief Executive
Officer, Director
/s/ Ronald Lau
- -------------------------------------- Director October 6, 1995
Ronald Lau
/s/ Robert H. Trapp
- ----------------------------------- Secretary, Treasurer October 13, 1995
Robert H. Trapp and Director