<PAGE>
As filed with the Securities and Exchange Commission on May 16, 1997.
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMERICAN WAGERING, INC.
- -------------------------------------------------------------------------------
(Exact name of issuer as specified in its charter)
Nevada 88-0344658
- -------------------------------------------------------------------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
675 Grier Drive, Las Vegas, Nevada 89119
- -------------------------------------------------------------------------------
(Address of principal executive offices)
American Wagering, Inc. 1995 Stock Option Plan
- -------------------------------------------------------------------------------
(Full title of the plan)
Robert D. Ciunci
Chief Financial Officer
American Wagering, Inc.
675 Grier Drive
Las Vegas, Nevada 89119
- -------------------------------------------------------------------------------
(Name and address of agent for service)
(702) 735-0101
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copies to:
Alan H. Lieblich, Esquire
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market Street
Philadelphia, Pennsylvania 19103
Telephone: (215) 751-2048
<PAGE>
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee
------------------ ------------ ------- ------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 355,000 Shares $9.8125(*) $3,483,437.5(*) $1,055.59(*)
par value $.01
per share
</TABLE>
- -------------------------------------------------------------------------------
(*) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
prices of a share of Common Stock on May 15, 1997, which was $9.8125
per share.
The approximate date of proposed sale to the public will be from time
to time upon exercise of options granted pursuant to the Plan.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference herein and made a part hereof:
(a) The annual report of the Company on Form 10-KSB for the
year ended January 31, 1997; and
(b) The Description of Securities contained in Item 1 of the
Form 8-A dated May 9, 1996, filed with the Commission on May 9, 1996.
In addition, any and all documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date hereof and prior to the termination of the offering of the
securities offered hereby shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing such documents.
Item 4. Description of Securities.
As the securities to be offered pursuant to this registration
statement are registered under Section 12 of the Securities Exchange Act of
1934, this item is inapplicable.
Item 5. Interests of Named Experts and Counsel.
The due issuance of the shares offered hereby has been passed
upon by Gordon & Silver, Ltd.
Item 6. Indemnification of Directors and Officers.
The Company's By-Laws and Amended and Restated Articles of
Incorporation provide for the indemnification of any director or officer who is
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Company, subject to
the condition set forth below) by reason of the fact that he or she is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against liabilities,
losses and expenses (including attorneys' fees), judgments, fines and amounts
paid or to be paid in settlement reasonably incurred by him or her in connection
with such action, suit or proceeding, provided that he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the Company, and with respect to any criminal action or
<PAGE>
proceeding, had no reasonable cause to believe was unlawful. No indemnification
shall be made in respect of any claim, issue or matter raised by or in the right
of the Company as to which the director or officer shall have been adjudged to
be liable for negligence or misconduct in the performance of his or her duty to
the Company, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that despite the
adjudication of liability but 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. A determination may be made by either the stockholders
or Board of Directors to approve or disallow any indemnification under the
foregoing provisions. In addition, with the approval of the stockholders, the
Company has entered into an Indemnification Agreement with each of its
directors. These agreements require the Company to indemnify any director, to
the fullest extent permitted by law, who is or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, or any
inquiry or investigation (including discovery), whether conducted by the Company
or any other arty, that such director in good faith believes might lead to the
institution of any action, suit or proceeding, whether civil, criminal,
administrative, investigative or other by reason of (or arising in part out of)
any event or occurrence related to the fact that such director is or was a
director, officer, employee, agent or fiduciary of the Company, or is or was
serving at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of any thing done or not
done by such director in any capacity. Indemnification under the foregoing
arrangements may be available for liabilities arising in connection with offers
under the Plan.
The Company has included in its Amended and Restated Articles
of Incorporation a provision which limits personal liability for breach of the
fiduciary duty of its directors, to the extent provided by Section 78.037 of the
Nevada corporation law. Such provision eliminates the personal liability of
directors for damages occasioned by breach of fiduciary duty, except for
liability based on the director's duty of loyalty to the Company, liability for
acts or omissions involving intentional misconduct, fraud or a knowing violation
of law, liability based on payments of improper dividends, and liability for
acts occurring prior to the date such provision was added.
Item 7. Exemption From Registration Claimed.
As no restricted securities are to be reoffered or resold
pursuant to this registration statement, this item is inapplicable.
Item 8. Exhibits
The exhibits required by Item 601 of Regulation S-K and this
item are included following the Exhibit Index at Page E-1, all of which are
incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
II-2
<PAGE>
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any additional or changed material
information on the plan of distribution;
(2) For determining liability under the Securities Act of
1933, to treat each post-effective amendment as a new registration statement of
the securities being offered, and the offering of the securities at that time to
be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
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 (and, where applicable, each filing
of the employee benefit plan's annual report pursuant to 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.
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 the Act and will
be governed by the final adjudication of such issue.
II-3
<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
all of 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 Las Vegas, State of Nevada on May 16, 1997.
AMERICAN WAGERING, INC.
By: /s/ Victor Salerno
------------------------------
Victor Salerno, President and
Chief Executive Officer
In accordance with 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>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Victor Salerno President; Chief Executive Officer; Director May 16, 1997
- --------------------------
Victor Salerno
/s/ Robert R. Barengo Director May 16, 1997
- --------------------------
Robert R. Barengo
/s/ Michael Roxborough Director May 16, 1997
- --------------------------
Michael Roxborough
/s/ Michael S. Merillat Director May 16, 1997
- --------------------------
Michael S. Merillat
/s/ Robert D. Ciunci Chief Financial Officer (Principal Financial and May 16, 1997
- -------------------------- Accounting Officer); Director
Robert D. Ciunci
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 Form of Common Stock Certificate Incorporated by Reference to Exhibit
4.1 to Registration Statement on
Form SB-2, File No. 33-80431
5 Opinion of Gordon & Silver, Ltd. Filed herewith.
23.1 Consent of Arthur Andersen LLP Filed herewith.
23.2 Consent of Gordon & Silver, Ltd. Included in Exhibit 5 above.
</TABLE>
E-1
<PAGE>
EXHIBIT 5
May 16, 1997
Board of Directors
American Wagering, Inc.
675 Grier Drive
Las Vegas, Nevada 89119
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as Nevada counsel for American Wagering, Inc., a Nevada
corporation (the "Company"), in connection with the proposed issuance of up to
355,000 shares of Common Stock of the Company (the "Shares"). The Shares are the
subject of a public offering under the American Wagering, Inc. 1995 Stock Option
Plan (the "Plan"), pursuant to a Registration Statement on Form S-8 filed by the
Company with the Securities and Exchange Commission (the "Registration
Statement") under the Securities Act of 1933, as amended.
For the purpose of rendering our opinion as set forth herein, we have
examined and relied upon the Company's bylaws and minutes, which are contained
in the minute book of the corporate proceedings of the board of directors and
shareholders of the Company; the Company's amended and restated articles of
incorporation, as certified by the Nevada Secretary of State on April 21, 1997;
and a certificate of good standing of the Company, dated April 21, 1997, issued
by the Nevada Secretary of State.
We have assumed the authenticity of all documents submitted to us as
originals; the genuineness of all signatures; the legal capacity of natural
persons; the accuracy and completeness of all corporate records made available
to us by the Company; the veracity of the records, certificates, documents and
other instruments furnished to us by the Company and public officials, although,
with your permission we have not necessarily independently verified the
statements made therein nor have we investigated the basis for the
representations contained therein; and the conformity to the originals of all
documents submitted to us as copies.
Based upon and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that the Shares have been
duly authorized and, when issued and delivered by the Company against payment
therefor pursuant to the Plan and due exercise of the options thereunder, will
be validly issued, fully paid and non-assessable.
<PAGE>
Board of Directors
American Wagering, Inc.
May 16, 1997
Page 2
We are licensed to practice law in the State of Nevada and the opinion
set forth herein is expressly limited to the laws of the State of Nevada. No
opinion is given or implied regarding federal law or the laws of any
jurisdiction other than the State of Nevada.
We hereby consent to the inclusion of this opinion in Exhibit 5 to the
Registration Statement and the reference to Gordon & Silver, Ltd. in Part II of
the Registration Statement under the caption "Interests of Named Experts and
Counsel."
Very truly yours,
/s/ GORDON & SILVER, LTD.
<PAGE>
EXHIBIT 23.1
May 16, 1997
To American Wagering, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated April
4, 1997 included in American Wagering, Inc.'s Annual Report on Form 10-KSB for
the year ended January 31, 1997 and to all references to our Firm included in
this registration statement.
Very truly yours,
ARTHUR ANDERSEN LLP
