SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
VIDEO LOTTERY TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 81-0470853
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.)
2311 South 7th Avenue
Bozeman, MT 59715
(Address of principal executive offices) (Zip Code)
(406) 585-6600
(Registrant's telephone number, including area code)
VIDEO LOTTERY TECHNOLOGIES, INC. 1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Richard M. Haddrill Copy to:
President, Treasurer and
Chief Financial Officer Michael Rosenzweig
Video Lottery Technologies, Inc. Rogers & Hardin
2311 South 7th Avenue 2700 International Tower
Bozeman, MT 59715 229 Peachtree Street NE
(Name and Address of agent for service) Atlanta, GA 30303
(406) 585-6600
(Telephone number, including area code, or agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate offering Amount of
to be registered registered per share(1) price(1) Registration Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 97,283(2) * * $138.26
- -----------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(c), the registration fee for the 97,283 additional
shares issuable pursuant to the Plan is based upon a price of $4.69 per
share, the average of the high and low sales price for the common stock on
April 7, 1997.
(2) The Prospectus that is a part of this Registration Statement also covers
200,000 shares registered pursuant to a registration statement on Form S-8
that became effective on July 29, 1991.
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission.
THIS REPORT INCLUDES A TOTAL OF 26 PAGES.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to participants in the Employee Stock
Purchase Plan as specified by Rule 428(b)(1) under the Securities Act of 1933,
as amended (the "Securities Act").
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement is filed for the purpose of registering
additional shares of common stock for offer and sale under the Video Lottery
Technologies, Inc. 1991 Employee Stock Purchase Plan and for incorporating
certain amendments to the Plan. A registration statement on Form S-8 (File No.
33-41946) is already effective. Except to the extent that exhibits are filed
herewith, the contents of Video Lottery Technologies, Inc.'s registration
statement on Form S-8 (File No. 33-41946) is hereby incorporated by reference.
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Video Lottery Technologies, Inc., a
Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") are incorporated by reference in this
registration statement:
(a) The Company's Registration Statement on Form 8-A, as declared
effective on June 3, 1991 and filed pursuant to Section 12(g) of the Exchange
Act (File No. 01-19322), including any amendment or report filed for the purpose
of updating such information (the "Form 8-A");
(b) All other reports filed by the Company under Section 13(a) or
15(d) of the Exchange Act since the end of the most recent fiscal year; and
(c) The description of the Company's common stock included in the Form
8-A.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the respective dates 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 or is
deemed to be incorporated by reference herein modified or supersedes such
statement. Any statement 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 required.
2
<PAGE>
Item 5. Interests of Named Experts
None
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in summary, that the directors and officers of the Company may, under
certain circumstances, be indemnified by the Company against all expenses
incurred by or imposed upon them as such directors and officers, or as directors
or officers of any other organization at the request of the Company, if they act
in good faith and in a manner they reasonably believe to be in or not opposed to
the best interests of the Company, and with respect to any criminal action or
proceeding, have no reasonable cause to believe their conduct was unlawful,
except that no indemnification shall be made against expenses in respect of any
claim, issue or matter as to which they shall have been adjudged to be liable 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, they are fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper. Section 145 of the DGCL also provides that directors and officers
of the Company are entitled to such indemnification by the Company to the extent
that such persons are successful on the merits or otherwise in defending any
such action, suit or proceeding. The Company's Bylaws provide for the
indemnification by the Company of officers and directors to the fullest extent
permitted by Section 145 of the DGCL.
The Company has entered into or intends to enter into agreements to
indemnify its directors and officers in addition to the indemnification provided
for in the Bylaws. These agreements, among other things, indemnify the Company's
directors and officers for certain expenses (including attorneys' fees),
judgments, fines and settlement amounts incurred by such person in any action by
or in the right of the Company, on account of services as a director or officer
of the Company or as a director or officer of any subsidiary of the Company, or
as a director of any other company or enterprise that the person provides
services to at the request of the Company. The Company believes that these
provisions and agreements are necessary to attract and retain qualified persons
as directors and officers.
The Company has obtained, at its expense, liability insurance for its
directors and officers. The insurance covers certain liabilities of the
Company's directors and officers arising out of actions taken in their official
capacities, subject to certain exclusions. As of the date hereof coverage limits
of the liability insurance were an aggregate of $5 million.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
4.1 Certificate of Incorporation
4.2 Bylaws
5.0 Opinion of Rogers & Hardin with respect to legality
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Rogers & Hardin (included in legal opinion)
3
<PAGE>
Item 9. Undertakings.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to this 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) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
this offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in this
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
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. In the event that a claim for indemnification
against such liabilities (other than payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company 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 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 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the Requirements of the Securities Act, the Company 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 Bozeman, State of Montana, on April 8, 1997.
VIDEO LOTTERY TECHNOLOGIES, INC.
By:/s/ Richard M. Haddrill
---------------------------------------------
Richard M. Haddrill, President, Treasurer and
Chief Financial Officer
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Pursuant to the requirements of the Securities Act , 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/ Richard M. Haddrill President, Treasurer and Chief 4/8/97
- ------------------------
Richard M. Haddrill Financial Officer
(Principal Executive Officer and
Principal Financial Officer)
/s/ Richard M. Burt Chairman and Director 4/8/97
- ------------------------
Richard M. Burt
/s/ James J. Davey Vice Chairman and Director 4/8/97
- ------------------------
James J. Davey
/s/ Patricia Becker Director 4/8/97
- ------------------------
Patricia Becker
/s/ John Hardesty Director 4/8/97
- ------------------------
John Hardesty
</TABLE>
5
Exhibit 4.1
[The following filing information appears:
State of Delaware
Secretary of State
Division of Corporations
Filed 01:00 PM 05/23/1991
731143018 - 2263871]
CERTIFICATE OF INCORPORATION
OF
VIDEO LOTTERY TECHNOLOGIES, INC.
To form a corporation pursuant to the Delaware General Corporation
Law, the undersigned hereby certifies as follows:
ARTICLE 1.
The name of this corporation is Video Lottery Technologies, Inc.
ARTICLE 2.
The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE 3.
This corporation shall have perpetual duration.
ARTICLE 4.
The registered office of this corporation in Delaware is 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801, and the name of its
registered agent is The Corporation Trust Company.
ARTICLE 5.
5.1 Authorized Shares. The total number of shares of stock which this
corporation is authorized to issue is 35,000,000 shares, par value $.01 per
share, of which 25,000,000 shares are designated common stock and 10,000,000
shares are designated preferred stock.
(a) Common Stock. The holders of the common stock shall be entitled to
receive, when and as declared by the Board of Directors, out of surplus or
net profits of this corporation legally available therefor, dividends
payable either in cash, in property or in shares of the capital stock of
this corporation. Each holder of the common stock shall -have one vote for
each share of common stock registered in his name on the books of this
corporation and entitled to vote. The common stock shall have no special
voting powers, preferences or rights, or Qualifications, limitations or
restrictions thereof.
(b) Preferred Stock. Authority is hereby expressly vested in the Board
of Directors, subject to the provisions of this Article 5 and to the
limitations prescribed by law, to authorize the issue from time to time of
one or more series of preferred stock and with respect to each such series
to fix by resolution or resolutions adopted by the affirmative vote of a
majority of the whole Board of Directors providing for the issue of such
series the voting powers, full or limited, If any, of the shares of such
series and the designations, preferences and relative, participating,
optional or other special rights and the qualifications, limitations or
restrictions thereof.
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The authority of the Board of Directors with respect to each series shall
include, but not be limited to, the determination or fixing of the
following:
(1) The number of shares constituting such series and the
designation of such series.
(2) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes or series of this corporation's capital stock, and whether
such dividends shall be cumulative or noncumulative.
(3) Whether the shares of such series shall be subject to
redemption by this corporation at the option of either this
corporation or the holder or both or upon the happening of a specified
event, and, if made subject to any such redemption, the times or
events, prices and other terms and conditions of such redemption.
(4) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(5) Whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or this
corporation or upon the happening of a specified event, shares of any
other class or classes or of any other series of the same or any other
class or classes of this corporation's capital stock, and, if
provision be made for conversion or exchange, the times or events,
prices, rates, adjustments, and other terms and conditions of such
conversions or exchanges.
(6) The restrictions, if any, on the issue or reissue of any
additional preferred stock, including increases or decreases in the
number of shares of any series subsequent to the issue of shares of
that series.
(7) The rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or winding up of
this corporation.
(8) Any right to vote with holders of shares of any other series
or class and any right to vote as a class, either generally or as a
condition to specified corporate action, in addition to any voting
powers required by law.
5.2 No Cumulative Voting. No holders of shares of any class or series
of this corporation shall have the right to cumulative voting.
5.3 No Pre-emptive Rights. No holders of shares of any class or series
of this corporation shall have any pre-emptive rights to subscribe for any
shares of any class or series of stock of this corporation, whether now or
hereafter authorized, or for any obligations convertible into shares of any
class or series of stock of this corporation, whether now or hereafter
authorized.
ARTICLE 6.
In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, amend, alter,
change, add to or repeal bylaws of this corporation, without any action on the
part of the stockholders. The bylaws made by the directors may be amended,
altered, changed, added to or repealed by the stockholders. Any specific
provision in the bylaws regarding amendment thereof shall be controlling.
ARTICLE 7.
7.1 Director Number. The number of directors of this corporation shall
be fixed from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the directors in office, but shall not be
less than three (3) or greater than eleven (11).
7.2 Directors. The Board of Directors of this corporation shall be
divided into three classes, Class 1, Class 2 and Class 3, as nearly equal in
number as possible, with the term of office of Class 1 expiring at the annual
7
<PAGE>
meeting of stockholders of this corporation in 1992, of Class 2 expiring at the
annual meeting of stockholders in 1993 and of Class 3 expiring at the annual
meeting of stockholders in 1994. At each annual meeting of stockholders,
directors chosen to succeed those whose terms then expire shall be elected for a
term of three years.
The initial Board of Directors shall be composed of the following
persons who shall serve until the annual meeting of stockholders in the year set
forth opposite their names:
<TABLE>
<CAPTION>
Name Address Class/Term Expiration
<S> <C> <C>
Larry Lippon 2311 South 7th Avenue Class 1/1992
Bozeman, Montana 59715
Stephen M. Barrett 2311 South 7th Avenue Class 2/1993
Bozeman, Montana 59715
Richard Barber 2311 South 7th Avenue Class 3/1994
Bozeman, Montana 59715
</TABLE>
7.3 Director Vacancy. Subject to any rights of holders of preferred
stock, if any, and unless the Board of Directors otherwise determines, a
majority of the directors then in office, in their sole discretion and whether
or not constituting less than a quorum, may elect a replacement director to
serve during the unexpired term of any director previously elected whose office
is vacant as a result of death, resignation, retirement, disqualification,
removal or otherwise, and may elect directors to fill any newly created
directorships created by the Board. At any election of directors by the Board of
Directors to fill any vacancy caused by an increase in the number of directors,
the terms of office for which candidates are nominated and elected shall be
divided as set forth in the immediately preceding paragraph.
7.4 Director Removal. Directors may be removed only for cause by the
affirmative vote of holders of a majority of the voting power of all of the then
outstanding shares of this corporation's capital stock entitled to vote
generally in the election of directors, voting together as a class.
7.5 Director Term. Each director shall be elected and serve until his
successor shall have been duly elected and qualified unless he shall have
resigned, become disqualified, deceased or disabled, or shall otherwise have
been removed from office.
ARTICLE 8.
8.1 Special Vote Required for Certain Business Combinations. In
addition to any affirmative vote required by law or this Certificate of
Incorporation or the bylaws of this corporation, and except as otherwise
expressly provided in Section 8.2 of this Article 8, a Business Combination (as
hereinafter defined) with, or proposed by or on behalf of, any Interested
Stockholder (as hereinafter defined) or any Affiliate or Associate (as
hereinafter defined) of any Interested Stockholder or any person who after such
Business Combination would be an Affiliate or Associate of such Interested
Stockholder shall require the affirmative vote of not less than two-thirds of
the votes entitled to be cast by the holders of all of the then outstanding
shares of Voting Stock (as hereinafter defined), voting together as a single
class, excluding Voting Stock beneficially owned by such Interested Stockholder.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage or separate class vote may be
specified, by law, by any other provision of this Certificate of Incorporation
or the bylaws of this corporation, by any agreement with any national securities
exchange or otherwise.
8.2 When Special Vote Not Required. The provisions of Section 8.1 of
this Article 8 shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law, by any other provision of this Certificate of
Incorporation or the bylaws of this corporation, by any agreement with any
national securities exchange or otherwise, if, in the case of a Business
Combination involving the receipt of consideration by the holders of this
corporation's outstanding Capital Stock (as hereinafter defined), the condition
specified in paragraph (a) below is met or all of the conditions specified in
paragraph (b) below are met or if, in the case of a Business Combination not
involving the receipt of consideration by the holders of this corporation's
outstanding Capital Stock, the condition specified in paragraph (a) below is
met:
8
<PAGE>
(a) Approval by Continuing Directors. The Business Combination (either
specifically or as a transaction which is within an approved category of
transactions) shall have been approved by a majority of the Continuing
Directors (as hereinafter defined).
(b) Minimum Price and Other Requirements. All of the following
conditions shall have been met:
(1) Minimum Price Requirements. With respect to every class or
series of outstanding Capital Stock of this corporation, whether or
not the Interested Stockholder has previously acquired beneficial
ownership of any shares of such class or series of Capital Stock:
(A) The aggregate amount of cash plus the Fair Market Value
(as hereinafter defined), as of the date of the consummation of
the business Combination, of consideration other than cash to be
received per share by holders of common stock in such Business
Combination shall be at least equal to the higher of the amounts
determined pursuant to clauses (i) and (ii) below:
(i) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of common stock in connection with
the acquisition by the Interested Stockholder of beneficial
ownership of shares of common stock (x) within the two-year
period immediately prior to the Announcement Date (as
hereinafter defined) or (y) in the transaction or series of
related transactions in which it became an Interested
Stockholder, whichever is higher, in either case as adjusted
for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to the common stock; and
(ii) the Fair Market Value per share of common stock
(x) on the Announcement Date or (y) on the Determination
Date (as hereinafter defined), whichever is higher, as
adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to the common
stock.
(B) The aggregate amount of cash plus the Fair Market Value,
as of the date of the consummation of the Business Combination,
of consideration other than cash to be received per share by
holders of shares of any class or series of outstanding Capital
Stock, other than common stock, shall be at least equal to the
highest of the amounts determined pursuant to clauses (i), (ii)
and (iii) below:
(i) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of such class
or series of Capital Stock (x) within the two-year period
immediately prior to the Announcement Date or (y) in the
transaction or series of related transactions in which it
became an Interested Stockholder, whichever is higher, in
either case as adjusted for any subsequent stock split,
stock dividend, subdivision or reclassification with respect
to such class or series of Capital Stock;
(ii) the Fair Market Value per share of such class or
series of Capital Stock (x) on the Announcement Date or (y)
on the Determination Date, whichever is higher, as adjusted
for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to such class or series of
Capital Stock; and
(iii) the highest preferential amount per share, if
any, to which the holders of shares of such class or series
of Capital Stock would be entitled in the event of any
voluntary or Involuntary liquidation, dissolution or winding
up of the affairs of this corporation regardless of whether
the Business Combination to be consummated constitutes such
an event.
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(2) Other Requirements.
(A) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be
in cash or in the same form as previously has been paid by or on
behalf of the Interested Stockholder in connection with its
direct or indirect acquisition of beneficial ownership of shares
of such class or series of Capital Stock. If the consideration so
paid for shares of any class or series of Capital Stock varies as
to form, the form of consideration for such class or series of
Capital Stock shall be either cash or the form paid by or on
behalf of the Interested Stockholder in connection with its
direct or indirect acquisition of beneficial ownership of the
largest number of shares of such class or series of Capital
Stock.
(B) After the Determination Date and prior to the
consummation of such Business Combination:
(i) there shall have been no failure to declare and pay
at the regular date therefor any full regular dividends
(whether or not cumulative) payable in accordance with the
terms of any outstanding Capital Stock, other than the
common stock, except as approved by a majority of the
Continuing Directors;
(ii) there shall have been no reduction in the amount,
or change in the frequency of payment, of any dividends
regularly paid on the common stock (accept as necessary to
reflect any stock split, stock dividend, subdivision or
reclassification of the common stock), except as approved by
a majority of the Continuing Directors;
(iii) there shall have been an increase in the amount
of any dividends regularly paid on the common stock as
necessary to reflect any reverse stock split or
reclassification of the common stock, or any split,
recapitalization, reorganization or any similar transaction
that has the effect of reducing the number of outstanding
shares of common stock, unless the failure so to increase
the amount of such dividends is approved by a majority of
the Continuing Directors; and
(iv) such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Capital
Stock except as part of or otherwise in connection with the
transaction or series of related transactions that resulted
in such Interested Stockholder becoming an Interested
stockholder (including the exercise of any right to purchase
additional of Capital Stock granted to any Interested
Stockholder by this corporation in connection with such
transaction or series of related transaction) and except in
a transaction or series of related transactions that, after
giving effect thereto, would not result in any increase in
the Interested Stockholder's percentage beneficial ownership
of any class or series of Capital Stock.
(C) After the Determination Date, such Interested
Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder of this
corporation), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by this corporation, whether in anticipation
of or in connection with such Business Combinations or otherwise.
(D) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Act") (or any subsequent provisions
replacing such Act), shall be mailed to all stockholders of this
corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions). Such proxy or information statement shall
contain, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Combination that
the Continuing Directors, or any of them, may choose to make and,
if deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a majority
of the Continuing Directors as to the fairness (or not) of the
terms of the Business Combination from a financial point of view
to the holders of the outstanding shares of Capital Stock other
than the
10
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Interested Stockholder and its Affiliates or Associates, such
investment banking firm to be paid a reasonable fee for its
services by this corporation.
(E) After the Determination Date, such Interested
Stockholder shall not have made any major change in this
corporation's business or capital structure without the approval
of a majority of the Continuing Directors.
8.3 Certain Definitions. The following definitions shall apply with
respect to this Article 8:
(a) The term "Business Combination" shall mean:
(1) any merger or consolidation of this corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested
Stockholder or (B) any other company (whether or not itself an
Interested Stockholder) that is or after such merger or consolidation
would be an Affiliate or Associate of any Interested Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, or any security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension
of credit, joint venture participation or other arrangement, in one
transaction or in a series of transactions, with or for the benefit of
any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving any assets, securities or commitments
of this corporation, any Subsidiary, any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder that, together
with all other such arrangements, has an aggregate Fair Market Value
and/or involves aggregate commitments equal to 10% or more of the book
value of the total assets (in the case of transactions involving
assets or commitments other than capital stock) or 10% or more of the
stockholders' equity (in the case of transactions in capital stock) of
the entity in question (the "Substantial Part"), as reflected in the
most recent fiscal year-end consolidated balance sheet of such entity
existing at the time the stockholders of this corporation would be
required to approve or authorize the Business Combination involving
the assets, securities and/or commitments constituting any Substantial
Part; or
(3) the adoption of any plan or proposal for the liquidation or
dissolution of this corporation which any Interested Stockholder votes
for or consents to; or
(4) any issuance or reclassification of securities (including any
stock dividend, split or reverse split or any other distribution of
securities in respect of stock), any recapitalization of this
corporation, any merger or consolidation of this corporation with any
of its Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Stockholder) that has the effect,
directly or indirectly, or increasing the proportionate share of any
class or series of Capital Stock, or any securities convertible into
or rights, options or warrants to acquire Capital Stock or equity
securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(5) any agreement, arrangement or other understanding providing
for any one or more of the actions specified in the foregoing clauses
(1) to (4).
(b) The term "Capital Stock" shall mean all capital stock of this
corporation authorized to be issued from time to time under Article 5 of
this Certificate of Incorporation, and the term "Voting Stock" shall mean
all Capital Stock which, by its terms may be voted on all matters submitted
to stockholders of this corporation generally.
(c) The term "person" shall mean any individual, firm, company or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(d) The term "Interested Stockholder" shall mean any person (other
than this corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of this
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corporation or any Subsidiary or any trustee of or fiduciary with respect
to any such plan when acting in such capacity) wo (1) is, or has publicly
disclosed a plan or intention to become, the beneficial owner of Voting
Stock representing 10% or more of the votes entitled to be cast by the
holders of all them outstanding shares of Voting Stock or (2) is an
Affiliate or Associate of this corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner of Voting Stock representing 10% or more of the votes
entitled to be cast by the holders of all then outstanding shares of Voting
stock.
(e) A person shall be a "beneficial owner" of, shall "beneficially
own" and shall have "beneficial ownership" of any Capital Stock (1) that
such person or any of its Affiliates or Associates owns, directly or
indirectly; (2) that such person or any of its Affiliates or Associates
has, directly or indirectly, (A) the right to acquire (whether such right
is exercisable immediately or subject only to the passage of time) pursuant
to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or
(B) the right to vote pursuant to any agreement, arrangement or
understanding; or (3) which is beneficially owned, directly or indirectly,
by any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of Capital Stock.
For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph (d) of this Section 8.3, the number of
shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this
paragraph (e) of Section 8.3, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(f) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Act as in effect on
the date that this Certificate of Incorporation is filed with the Secretary
of State of the State of Delaware (the term "registrant" in Rule 12b-2
meaning in this case this corporation).
(g) The term "Subsidiary" means any company of which a majority of any
class of equity securities are beneficially owned, directly or indirectly,
by this corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in paragraph (d) of this
Section 8.3, the term "Subsidiary" shall mean only a company of which a
majority of each class of equity security is beneficially owned by this
corporation.
(h) The term "Continuing Director," with respect to any particular
Business Combination with, or proposed by or on behalf of, any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder or
any person who thereafter would be an Affiliate or Associate of any
Interested Stockholder, means any member of the Board of Directors of this
corporation, while such person is a member of the Board of Directors, who
is not an Affiliate, Associate or representative of such Interested
Stockholder and was a member of the Board of Directors prior to the time
that such Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director, while such successor is a member of the
Board of Directors, who is not an Affiliate or Associate or representative
of such Interested Stockholder and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
(i) The term "Fair Market Value" means (1) in the case of cash, the
amount of such cash; (2) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock Exchange
Listed Stocks, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing sale price with respect to
a share of such stock during the 30-day period preceding the date in
question as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or any similar system then in use, or if no
such sale prices are available, the highest of the means between the last
reported bid and asked price with respect to a share of such stock on each
day during the 30-day period preceding the date in question as reported by
the National Associate of Securities Dealers, Inc. Automated Quotation
System, or if not so reported, as determined by a member firm of the
National Association of Securities Dealers, Inc. selected by the Continuing
Directors, or if no such bid and asked prices are available, the fair
market value on the date in question of a share of such stock as determined
in good faith by a majority of the Continuing Directors; and (3) in the
case of property other than cash or stock, the fair market value of such
property on the date in questions
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as determined in good faith by a majority of the Continuing Directors.
(j) In the event of any Business Combination in which this corporation
survives, the phrase "consideration other than cash to be received" as used
in paragraph (b)(1)(A) and (b)(1)(B) of Section 8.2 of this Article 8 shall
include the shares of common stock and the shares of any other class or
series of Capital Stock retained by the holders of such shares.
(k) The term "Announcement Date" means the date on which the proposed
Business Combination is first publicly announced, disclosed or reported.
(1) The term "Determination Date" means with respect to any Interested
Stockholder the later of the date that this Certificate of Incorporation is
filed with the Secretary of State of the State of Delaware or the date on,
which such Interested Stockholder became an Interested Stockholder.
8.4 Powers of Directors. For the purpose of this Article 8, a majority
of the Continuing Directors shall have the power and duty to determine in good
faith, on the basis of information known to them after reasonable inquiry, all
questions arising under this Article 8, including, without limitation, (a)
whether a person is an Interested Stockholder, (b) the number of shares of
Capital Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether a Business Combination or any
proposal to amend, repeal or adopt any provision of this Certificate of
Incorporation inconsistent with this Article 8 is with, or proposed by or on
behalf of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder or a person who thereafter would be an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder, and (e)
whether any transaction specified in paragraph (a)(2) of Section 8.3 of this
Article 8 meets the Substantial Part test set forth therein; except that a
majority of the entire Board of Directors shall have the power and duty to
determine in good faith, on the basis of information known to them after
reasonable investigation, whether a director is a "Continuing Director" as
defined in paragraph (h) of Section 8.3 of this Article 8. Any such
determination made in good faith shall be binding and conclusive on all parties.
8.5 No Effect on Fiduciary Obligations.
(a) Nothing contained in this Article 8 shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
(b) The fact that any Business Combination complies with the
provisions of Section 8.2 of this Article 8 shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of this corporation,
and such compliance shall not limit, prohibit or otherwise restrict in any
manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such Business
Combination.
ARTICLE 9.
The Board of Directors of this corporation, when evaluating any offer
of another party to (a) make a tender offer or exchange offer for any equity
security of this corporation, (b) merge or consolidate this corporation with
another corporation or (c) purchase or otherwise acquire all or substantially
all of the properties and assets of this corporation, may, in connection with
the exercise of its judgment in determining what is in the best interests of
this corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on this
corporation and its employees, customers, creditors, suppliers, and other
constituents of this corporation and its subsidiaries and on the communities in
which this corporation and its subsidiaries operate or are located; the business
and financial condition and earnings prospects of the acquiror; and the
competence, experience and integrity of the acquiror and its management.
ARTICLE 10.
Notwithstanding any other provisions of this Certificate of
Incorporation or of the bylaws of this corporation, the affirmative vote of the
holders of not less than 66-2/3% of the outstanding shares of Voting Stock (as
defined in Section 8.3(b)) of this corporation shall be required to amend,
alter, repeal, or adopt any provision inconsistent with Articles 5, 7, 8, 9 or
this Article 10 of this Certificate of Incorporation.
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ARTICLE 11.
A director of this corporation shall not be personally liable to this
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this article shall not eliminate or
limit the liability of a director (a) for any breach of the director's duty of
loyalty to this corporation or its stockholders; (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) for the unlawful payment of dividends or unlawful stock repurchases or
redemptions under Section 174 of the Delaware General Corporation Law; or (d)
for any transaction from which the director derived an improper personal
benefit. This article shall not eliminate or limit the liability of a director
for any act or omission occurring prior to the effective date of this article.
If the Delaware General Corporation Law is hereafter amended to
authorize any further limitation of the liability of a director, then the
liability of a director of this corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation law, as
amended.
Any repeal or modification of the foregoing provisions of this article
by the stockholders of this corporation shall not adversely affect any right or
protection of a director of this corporation existing at the time of such repeal
or modification.
ARTICLE 12.
The name and mailing address of the incorporator are: Timothy S.
Hearn, Dorsey & Whitney, 2200 First Bank Place East, Minneapolis, Minnesota
55402.
Dated: May 23, 1991.
/s/ Timothy S. Hearn
---------------------------
Timothy S. Hearn
14
Exhibit 4.2
BYLAWS
OF
VIDEO LOTTERY TECHNOLOGIES, INC.
ARTICLE I.
Offices, Corporate Seal
Section 1.01. Offices. This corporation shall have a registered office, a
principal office and such other offices as the Board of Directors may determine.
Section 1.02. Corporate Seal. This corporation shall have no corporate
seal.
ARTICLE II.
Meetings of Stockholders
Section 2.01. Place and Time of Meetings. Meetings of the stockholders may
be held at such place and at such time as may be designated by the Board of
Directors. In the absence of a designation of place, the meeting shall be held
at the principal office. In the absence of a designation of time, the meeting
shall be held at 10:00 a.m.
Section 2.02. Annual Meetings. The annual meeting of the stockholders of
this corporation for the election of directors and for the transaction of any
other proper business, notice of which was given in the notice of the meeting,
shall be held in April of each year on such business day as the Secretary of
this corporation shall determine from time to time, or such other day or time as
the Board of Directors may determine from time to time. However, the necessity
of such annual meeting of stockholders may be dispensed with if it is determined
by the President to seek the written consent of the stockholders. If a
sufficient number of written consents are not obtained prior to the appointed
time as hereinabove provided, the Board of Directors shall cause an annual
meeting to be held as soon thereafter as possible.
Section 2.03. Business. To be properly brought before an annual meeting of
stockholders, business must be either (1) specified in the notice of the
meeting, (2) directed to be brought before the meeting by the board of directors
or (3) proposed by a stockholder in the manner herein provided. Subject to
Section 2.04, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must give written notice to the Secretary of this
corporation so as to be received at the principal executive offices of this
corporation not less than 50 days or more than 90 days prior to the date on
which the annual meeting is to be held, regardless of any postponements,
deferrals or adjournments of that meeting to a later date; provided, however,
that if less than 60 days' notice or prior public disclosure of the date of the
scheduled annual meeting is given or made, notice by the stockholder must be so
given and received not later than the close of business on the tenth day
following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. Such notice shall set forth (1) a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting
such business, (2) the name and record address of the stockholder proposing such
business and any other stockholders known by such stockholder to be supporting
such proposal, (3) the class and number of shares of this corporation
beneficially owned by the stockholder and by any other stockholder known by such
stockholder to be supporting such proposal on the date of such stockholder
notice, and (4) any material interest of the stockholder in such business.
Section 2.04. Nomination of Directors. Only persons nominated in accordance
with the following procedures shall be eligible for election by stockholders as
directors. Nominations of persons for election as directors may be made at a
meeting of stockholders called for the purpose of electing directors (a) by or
at the direction of the board of directors or (b) by any stockholder in the
manner herein provided. For a nomination to be properly made by a stockholder,
the stockholder must give written notice to the Secretary of this corporation so
as to be received at the principal executive offices of this corporation not
less than 50 days or more than 90 days prior to the date on which the meeting is
to be held, regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that if less than 60 days' notice or
prior public disclosure of the date of the scheduled meeting is given or made,
notice
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by the stockholder must be so given and received not later than the close of
business on the tenth day following the earlier of the day on which such notice
of the date of the scheduled meeting was mailed or the day on which such public
disclosure was made. Such notice shall set forth (a) as to each person the
stockholder proposes to nominate (1) the name, age, business address and
residence address of the nominee, (2) the principal occupation or employment of
the nominee, (3) the class and number of shares of this corporation beneficially
owned by the nominee and (4) any other information required to be disclosed in
solicitations of proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice (1) the name and record address of the stockholder
and any other stockholders known by such stockholder to be supporting such
proposal and (2) the class and number of shares of this corporation beneficially
owned by the stockholder and by any other stockholder known by such stockholder
to be supporting such proposal on the date of such stockholder notice. Such
notice must also include a signed consent from each nominee that such nominee is
willing to serve as a director of this corporation, if elected.
Section 2.05. Special Meetings. Special meetings of the stockholders for
any purpose or purposes shall be called only by the Board of Directors, by the
Executive Committee or by the stockholders owning a majority of the shares
outstanding and entitled to vote. Business transacted at any special meeting
shall be limited to the purposes stated in the notice of meeting and properly
brought to the meeting as determined by the chairman of the meeting.
Section 2.06. Quorum, Adjourned Meetings. The holders of a majority of the
shares outstanding and entitled to vote shall constitute a quorum for the
transaction of business at any annual or special meeting. If a quorum is not
present at a meeting, those present shall adjourn to such day as they shall
agree upon by majority vote. Notice of any adjourned meeting need not be given
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At adjourned meetings at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If a quorum is present, the stockholders may continue to
transact business until adjournment notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.07. Organization. At each meeting of the stockholders, the
Chairman of the Board, or in his absence the Chief Executive Officer or in his
absence the President or in his absence a chairman chosen by a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote, shall act as chairman of the meeting; and the Secretary of this
corporation, or in his absence an Assistant Secretary or in his absence any
person whom the chairman of the meeting shall appoint, shall act as secretary of
the meeting.
Section 2.08. Order of Business. The order of business at all meetings of
the stockholders shall be determined by the chairman of the meeting, but such
order of business may be changed by the vote of a majority in voting interest of
those present or represented at such meeting and entitled to vote thereat.
Section 2.09. Voting. Each stockholder of this corporation entitled to vote
at a meeting of stockholders, or entitled to express consent in writing to the
corporate action without a meeting, shall have one vote in person or by proxy
for each share of stock having voting rights held by him and registered in his
name on the books of this corporation. Upon the request of any stockholder, the
vote upon any question before a meeting shall be by written ballot, and all
elections of directors shall be by written ballot. All questions at a meeting
shall be decided by a majority vote of the number of shares entitled to vote
represented at the meeting at the time of the vote except where otherwise
required by statute, the Certificate of Incorporation or these Bylaws. Any
action to be taken by written consent without a meeting may be taken by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting in which
all shares entitled to vote thereon were present and voted. For the election of
directors, the persons receiving the largest number of votes (up to and
including the number of directors to be elected) shall be directors. If
directors are to be elected by consent in writing of the stockholders without a
meeting, those persons receiving the consent in writing of the largest number of
shares in the aggregate and constituting not less than a majority of the total
outstanding shares entitled to consent in writing thereon (up to and including
the number of directors to be elected) shall be directors. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held. If shares
stand of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons shall have the same fiduciary
relationship respecting the same shares, unless the Secretary of this
corporation shall have been given written notice to the contrary and shall have
been furnished with a copy of the instrument or order appointing them or
creating a relationship wherein it is so provided, their acts with respect to
voting shall have the following effect:
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(i) if only one shall vote, his act shall bind all.
(ii) if more than one shall vote, the act of the majority voting
shall bind all.
(iii) if more than one shall vote, but the votes shall be evenly
split on any particular matter, then, except as otherwise
required by statute, each fraction may vote the shares in
question proportionately.
Section 2.10. Inspectors of Election. Prior to each meeting of the
stockholders, the chairman of such meeting shall appoint one or more inspectors
of election to act. This corporation may designate one or more persons to act as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the chairman of such
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector of election so appointed shall first subscribe an oath or affirmation
briefly to execute the duties of an inspector of election at such meeting with
strict impartiality and according to the best of his ability. Such inspectors of
election shall take charge of the ballots at such meeting and after the
balloting thereat on any question shall count the ballots cast thereon and shall
make a report in writing to the secretary of such meeting of the results
thereof, all as required or permitted by statute, the Certificate of
Incorporation or these Bylaws. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxies or votes, and no
revocations thereof or changes thereto, shall be accepted by the inspectors of
election after the closing of the polls unless the Delaware Court of Chancery
upon application by a stockholder shall determine otherwise. An inspector of
election need not be a stockholder of this corporation, and any officer or
employee of this corporation may be an inspector of election on any question
other than a vote for or against his election to any position with this
corporation or on any other question in which he may be directly interested.
Section 2.11. Notices of Meetings and Consents. Every stockholder shall
furnish the Secretary of this corporation with an address at which notices of
meetings and notices and consent material with respect to proposed corporate
action without a meeting and all other corporate communications may be served on
or mailed to him. Except as otherwise provided by the Certificate of
Incorporation or by statute, a written notice of each annual and special meeting
of stockholders shall be given not less than 10 nor more than 60 days before the
date of such meeting or the date on which the corporate action without a meeting
is proposed to be taken to each stockholder of record of this corporation
entitled to vote at such meeting by delivering such notice of meeting to him
personally or depositing the same in the United States mail, postage prepaid,
directed to him at the post office address shown upon the records of this
corporation. Service of notice is complete upon mailing. Personal delivery to
any officer of a corporation or association or to any member of a partnership is
delivery to such corporation, association or partnership. Every notice of a
meeting of stockholders shall state the place, date and hour of the meeting and
the purpose or purposes for which the meeting is called.
Section 2.12. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or consent to corporate action without a meeting may authorize, in
the manner permitted by statute, the Certificate of Incorporation or these
bylaws, another person or persons to act for him by proxy. If any such
instrument designates two or more persons to act as proxies, a majority of such
persons present at the meeting, or, if only one shall be present, then that one,
shall have and may exercise all of the powers conferred by such written
instrument upon all of the persons so designated unless the instrument shall
otherwise provide. No such proxy shall be valid after three years from the date
of its execution unless the proxy provides for a longer period. A proxy may be
irrevocable if it states that it is irrevocable and, if, and only as long as, it
is coupled with an interest sufficient to support an irrevocable power. Subject
to the above, any proxy may be revoked if an instrument revoking it or proxy
bearing a later date is filed with the Secretary.
Section 2.13. Waiver of Notice. Notice of any annual or special meeting may
be waived either before, at or after such meeting in writing signed by the
person or persons entitled to the notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transacting of any business because the meeting is not lawfully
called or convened.
Section 2.14. Written Action. Any action that may be taken at a meeting of
the stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the actions so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be required to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the corporation. Prompt notice of the taking of the
corporate action without a meeting by less than
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unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 2.15. Stockholder List. The officer who has charge of the stock
ledger of this corporation shall prepare and make, at least 10 days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
ARTICLE III.
Board of Directors
Section 3.01. General Powers. The business of this corporation shall be
managed by the Board of Directors.
Section 3.02. Number, Qualification and Term of Office. The number of
directors may be fixed from time to time by a resolution adopted by a majority
of the total number of directors but shall not be less than three (3) or greater
than eleven (11). Directors need not be stockholders. Except as provided by law,
the Certificate of Incorporation or the provisions of this Article III, each
director shall hold office until the annual meeting of stockholders next held
after his election or until the stockholders have elected directors by consent
in writing without a meeting and until his successor is elected and qualified or
until his earlier death, resignation or removal.
Section 3.03. Annual Meeting. As soon as practicable after each election of
directors, the Board of Directors shall meet at the registered office of this
corporation, or at such other place previously designated by the Board of
Directors, for the purpose of electing the officers of this corporation and for
the transaction of such other business as may come before the meeting.
Section 3.04. Regular Meetings. Regular meetings of the Board of Directors
shall be held from time to time at such time and place as may be fixed by
resolution adopted by a majority of the total number of directors.
Section 3.05. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the Chief Executive Officer, the
President, or by any two of the directors and shall be held from time to time at
such time and place as may be designated in the notice of such meeting.
Section 3.06. Notice of Meetings. No notice need be given of any annual or
regular meeting of the Board of Directors. Notice of each special meeting of the
Board of Directors shall be given by the Secretary who shall give at least 24
hours' notice thereof to each director by mail, telephone, telegram or in
person. Notice shall be effective upon receipt.
Section 3.07. Waiver of Notice. Notice of any meeting of the Board of
Directors may be waived either before, at, or after such meeting in writing
signed by each director. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purposes of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 3.08. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless these Bylaws require a greater number.
Section 3.09. Vacancies. Except as provided by the Certificate of
Incorporation, any vacancy among the directors or increase in the authorized
number of directors shall be filled for the unexpired term by a majority of the
directors then in office though less than a quorum or by the sole remaining
director. When one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office may fill such vacancy or
vacancies to take effect when such resignation or resignations shall become
effective.
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Section 3.10. Removal. Any director may be removed from office at any
meeting of the stockholders only for cause by holders of a majority of the
voting power of all the outstanding shares of this corporation's capital stock
entitled to vote generally in the election of directors, voting together as a
single class. If the entire Board of Directors or any one or more directors be
so removed, new directors shall be elected at the same meeting.
Section 3.11. Committees of Directors. The Board of Directors may, by
resolution adopted by a majority of the total number of directors, designate one
or more committees, each to consist of two or more of the directors of this
corporation, which, to the extent provided in the resolution, may exercise the
powers of the Board of Directors in the management of the business and affairs
of this corporation. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined by the resolution
adopted by the directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
Section 3.12. Written Action. Any action required or permitted to be taken
at a meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all directors or committee members consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
Section 3.13. Compensation. Directors who are not salaried officers of this
corporation may receive a fixed sum per meeting attended or a fixed annual sum
and such other forms of reasonable compensation as may be determined by
resolution of the Board of Directors. All directors shall receive their
expenses, if any, of attendance at meetings of the Board of Directors or any
committee thereof. Any director may serve this corporation in any other capacity
and receive proper compensation therefor.
Section 3.14. Conference Communications. Directors may participate in any
meeting of the Board of Directors, or of any duly constituted committee thereof,
by means of a conference telephone conversation or other comparable
communication technique whereby all persons participating in the meeting can
hear and communicate to each other. For the purposes of establishing a quorum
and taking any action at the meeting, such directors participating pursuant to
this Section 3.14 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
ARTICLE IV.
Officers
Section 4.01. Number. The officers of this corporation shall consist of a
Chairman of the Board of Directors, a Chief Executive Officer, a President, at
least one Vice President, a Secretary, a Chief Financial Officer, a Treasurer
and any officers and agents as the Board of Directors by a majority vote of the
total number of directors may designate. Any person may hold two or more
offices.
Section 4.02. Election, Term of Office, and Qualifications. At each annual
meeting of the Board of Directors all officers, from within or without their
number, shall be elected. Such officers shall hold office until the next annual
meeting of the directors or until their successors are elected and qualified, or
until such office is eliminated by a vote of the majority of all directors.
Officers who may be directors shall hold office until the election and
qualification of their successors, notwithstanding an earlier termination of
their directorship.
Section 4.03. Removal and Vacancies. Any officer may be removed from his
office by a majority vote of the total number of directors with or without
cause. Such removal shall be without prejudice to the contract rights of the
person so removed. A vacancy among the officers by death, resignation, removal,
or otherwise shall be filled for the unexpired term by the Board of Directors.
Section 4.04. Chairman of the Board. The Chairman of the Board, if one is
elected, shall preside at all meetings of the stockholders and directors and
shall have such other duties as may be prescribed, from time to time, by the
Board of Directors.
Section 4.05. Chief Executive Officer. The Chief Executive Officer shall
have general active management of the business of this corporation. In the
absence of the Chairman of the Board, he shall preside at all meetings of the
stockholders and directors. He shall see that all orders and resolutions of the
directors are carried into effect. He may
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execute and deliver in the name of this corporation any deeds, mortgages, bonds,
contracts or other instruments pertaining to the business of this corporation
and in general shall perform all duties usually incident to the office of the
Chief Executive Officer. He shall have such other duties as may, from time to
time, be prescribed by the Board of Directors.
Section 4.06. President. The President shall have such powers and shall
perform such duties as may be prescribed by the Board of Directors or the Chief
Executive Officer.
Section 4.07. Vice President. Each Vice President shall have such powers
and shall perform such duties as may be prescribed by the Board of Directors or
the Chief Executive Officer. In the event of absence or disability of the
President, Vice Presidents shall succeed to the powers and duties of the
President in the order designated by the Board of Directors.
Section 4.08. Secretary. The Secretary shall be secretary of and shall
attend all meetings of the stockholders and Board of Directors and shall record
all proceedings of such meetings in the minute book of this corporation. He
shall give proper notice of meetings of stockholders and the Board of Directors.
He shall perform such other duties as may from time to time be prescribed by the
Board of Directors or the Chief Executive Officer.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall
keep accurate accounts of all moneys of this corporation received or disbursed.
He shall deposit all moneys, drafts and checks in the name of and to the credit
of this corporation in such banks and depositories as a majority of the whole
Board of Directors shall from time to time designate. He shall have power to
endorse for deposit all notes, checks and drafts received by this corporation.
He shall disburse the funds of this corporation as ordered by the directors,
making proper vouchers therefor. He shall render to the Board of Directors and
the Chief Executive Officer whenever required an account of all his transactions
as Chief Financial Officer and of the financial condition of this corporation
and shall perform such other duties as may from time to time be prescribed by
the Board of Directors and the Chief Executive Officer.
Section 4.10. Treasurer. The Treasurer shall have such powers and shall
perform such duties as may be prescribed by the Board of Directors or the Chief
Executive Officer.
Section 4.11. Duties of Other Officers. The duties of such other officers
and agents as the Board of Directors may designate shall be set forth in the
resolution creating such office or by subsequent resolution.
Section 4.12. Compensation. The officers of this corporation shall receive
such compensation for their services as may be determined from time to time by
resolution of the Board of Directors or by one or more committees to the extent
so authorized from time to time by the Board of Directors.
ARTICLE V.
Shares and Their Transfer
Section 5.01. Certificates for Stock. Every holder of stock in this
corporation shall be entitled to a certificate, to be in such form as shall be
prescribed by the Board of Directors, certifying the number of shares in this
corporation owned by him. The certificates for such shares shall be numbered in
the order in which they shall be issued and shall be signed in the name of this
corporation by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.
Every certificate surrendered to this corporation for exchange or transfer shall
be cancelled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such certificate shall have been so
cancelled, except in cases provided for in Section 5.05.
Section 5.02. Issuance of Stock. The Board of Directors is authorized to
cause to be issued stock of this corporation up to the full amount authorized by
the Certificate of Incorporation in such amounts and for such consideration as
may be determined by the Board of Directors. No shares shall be allotted except
in consideration of cash, labor, personal property, or real property, or leases
thereof, or of an amount transferred from surplus to stated capital upon a share
dividend. At the time of such allotment of stock, the Board of Directors shall
state its determination of the fair value to this corporation in monetary terms
of any consideration other than cash for which shares are allotted. Stock so
issued shall be fully paid and nonassessable. The amount of consideration to be
received in cash or otherwise shall not be less than the par value of the shares
so allotted. Treasury shares may be disposed of by this corporation for such
consideration, expressed in dollars, as may be fixed by the Board of Directors.
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Section 5.03. Partly Paid Stock. This corporation may issue the whole or
any part of its stock as partly paid and subject to call for the remainder of
the consideration to be paid therefor. Upon the face or back of each certificate
issued to represent any such partly paid stock, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid stock, this corporation shall
declare a dividend upon partly paid stock of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon. The Board of
Directors may, from time to time, demand payment, in respect of each share of
stock not fully paid, of such sum of money as the necessities of the business
may, in the judgment of the Board of Directors, require, not exceeding in the
whole the balance remaining unpaid on such stock, and such sum so demanded shall
be paid to this corporation at such times and by such installments as the
directors shall direct. The directors shall give written notice of the time and
place of such payments, which notice shall be mailed at least 30 days before the
time for such payment, to each holder of or subscriber for stock which is not
fully paid at his last known post-office address.
Section 5.04. Transfer of Stock. Transfer of stock on the books of this
corporation may be authorized only by the stockholder named in the certificate,
the stockholder's legal representative or the stockholder's duly authorized
attorney-in-fact and upon surrender of the certificate or the certificates for
such stock. This corporation may treat as the absolute owner of stock of this
corporation the person or persons in whose name stock is registered on the books
of this corporation.
Section 5.05. Loss of Certificates. Any stockholder claiming a certificate
for stock to be lost, stolen or destroyed shall make an affidavit of that fact
in such form as the Board of Directors may require and shall, if the Board of
Directors so requires, give this corporation a bond of indemnity in form, in an
amount, and with one or more sureties satisfactory to the Board of Directors, to
indemnify this corporation against any claims which may be made against it on
account of the alleged loss, theft or destruction of the certificate or issuance
of such new certificate. A new certificate may then be issued in the same tenor
and for the same number of shares as the one claimed to have been lost, stolen
or destroyed.
Section 5.06. Facsimile Signature. Whenever any certificate is
countersigned by a transfer agent or by a registrar other than this corporation
or its employee, then the signatures of the officers or agents of this
corporation may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on any such
certificate shall cease to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by this corporation as though the
person who signed such certificate or whose facsimile signature or signatures
had been placed thereon were such officer, transfer agent or registrar at the
date of issue.
ARTICLE VI.
Dividends, Surplus, Etc.
Section 6.01. Dividends. The Board of Directors may declare dividends from
this corporation's surplus, or if there be none, out of its net profits for the
current fiscal year and/or the preceding fiscal year in such amounts as in their
opinion the condition of the affairs of this corporation shall render it
advisable, unless otherwise restricted by law.
Section 6.02. Use of Surplus, Reserves. The Board of Directors may use any
of its property or funds, unless such would cause an impairment of capital, in
purchasing any of the stock, bonds, debentures, notes, scrip or other securities
or evidences of indebtedness of this corporation. The Board of Directors may
from time to time set aside from its surplus or net profits such sums as it
deems proper as a reserve fund for any purpose.
ARTICLE VII.
Books and Records, Audit, Fiscal Year
Section 7.01. Books and Records. The Board of Directors of this corporation
shall cause to be kept: (a) a share ledger which shall be a charge of an officer
designated by the Board of Directors; (b) records of all proceedings of
stockholders and directors; and (c) such other records and books of account as
shall be necessary and appropriate to the conduct of the corporate business.
Section 7.02. Audit. The Board of Directors shall cause the records and
books of account of this corporation to be audited at least once in each fiscal
year and at such other times as it may deem necessary or appropriate.
Section 7.03. Annual Report. The Board of Directors shall cause to be filed
with the Delaware Secretary of State in each year the annual report required by
law.
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Section 7.04. Fiscal Year. The fiscal year of this corporation shall end on
December 31 of each year.
Section 7.05. Examination by Stockholders. Any stockholder of record of
this corporation, upon written demand under oath stating the purpose thereof,
shall have the right to inspect in person or by agent or attorney, during usual
business hours, for any proper purpose, this corporation's stock ledger, a list
of its stockholders and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
such person's interest as a stockholder. Holders of voting trust certificates
representing stock of this corporation shall be regarded as stockholders for the
purpose of this subsection. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to this corporation at its registered
office in Delaware or at its principal office.
ARTICLE VIII.
Indemnification
Section 8.01. This corporation shall indemnify all officers and directors
of this corporation, for such expenses and liabilities, in such manner, under
such circumstances and to such extent as permitted by Section 145 of the
Delaware Corporation Law, as now enacted or hereafter amended. Unless otherwise
approved by the Board of Directors or required by law or contract, this
corporation shall not indemnify any employee or agent of this corporation who is
not otherwise entitled to indemnification pursuant to the prior sentence of this
Section 8.01.
ARTICLE IX.
Payment of Investigation Expenses
Section 9.01. This corporation shall pay all costs and expenses of any
officer, director or employee which are required or occasioned by any
investigation by, or the investigatory requirements of, any regulatory agency or
authority relating to licenses, licensing or operating authority for this
corporation or any of its subsidiaries in any jurisdiction.
ARTICLE X.
Miscellaneous
Section 10.01. Fixing Date for Determination of Stockholders of Record.
(a) In order that this corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(2) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is necessary, shall be the
first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to this corporation.
(3) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
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Section 10.02. Periods of Time. During any period of time prescribed by
these Bylaws, the date from which the designated period of time begins to run
shall not be included, and the last day of the period so computed shall be
included.
Section 10.03. Voting Securities Held by this Corporation. Unless otherwise
ordered by the Board of Directors, the Chief Executive -Officer shall have full
power and authority on behalf of this corporation (a) to attend and to vote at
any meeting of security holders of other corporations in which this corporation
may hold securities; (b) to execute any proxy for such meeting on behalf of this
corporation; or (c) to execute a written action in lieu of a meeting of such
other corporation on behalf of this corporation. At such meeting, by such proxy
or by such writing in lieu of meeting, the Chief Executive Officer shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities that this corporation might have possessed and exercised if it had
been present. The Board of Directors may, from time to time, confer like powers
upon any other person or persons.
Section 10.04. Purchase and Sale of Securities. Unless otherwise ordered by
the Board of Directors, the Chief Executive Officer shall have full power and
authority on behalf of this corporation to purchase, sell, transfer or encumber
any and all securities of any other corporation owned by this corporation and
may execute and deliver such documents as may be necessary to effectuate such
purchase, sale, transfer or encumbrance. The Board of Directors may, from time
to time, confer like powers upon any other person or persons.
ARTICLE XI.
Amendments
Section 11.01. These Bylaws may be amended, altered or repealed by the
Board of Directors or the stockholders at any meeting upon proper notice;
provided, however, that the affirmative vote of the holders of not less than
66-2/3% of the voting power of all the outstanding shares of this corporation's
capital stock entitled to vote shall be required for stockholders of this
corporation to amend, alter, repeal or adopt any provisions inconsistent with
Sections 2.03, 2.04, 2.05, 3.02, 3.10 or 11.01 of these Bylaws.
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Exhibit 5.0 and Exhibit 23.2
[The following text appears as letterhead:
Rogers & Hardin
Attorneys at Law
2700 International Tower, Peachtree Center
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 522-4700
TELEX: 54-2335
TELECOPIER: (404) 525-2224]
April 8, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Video Lottery Technologies, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Video Lottery Technologies, Inc., (the
"Company") in connection with the filing by the Company of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering under the Securities Act of
1933, as amended (the "Act"), 97,283 shares of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company issuable in connection with the
Company's 1991 Stock Option Plan, as amended (the "Plan"). (All such shares of
Common Stock are referred to herein as the "Shares".)
The opinion hereinafter set forth is given pursuant to Item 8 of Form S-8
and Item 601 of Regulation S-K. Such opinion is given solely for the benefit of
the Commission, may be relied upon only by the Commission in connection with the
Registration Statement and may not be used, circulated, quoted or referred to by
or filed with any other person or entity, including any other governmental unit
or agency, without first obtaining the express written consent of this firm.
In giving the opinion hereinafter set forth, we have examined the minutes
of the proceedings of the stockholders and the Board of Directors of the
Company, the Plan and such other agreements, documents, instruments and records
as we deemed necessary or appropriate under the circumstances for us to express
the opinion hereinafter set forth. As to various factual matters that are
material to our opinion, we have relied upon certificates of officers of the
Company and certificates of various public officials. In making the foregoing
examinations, we assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies, the authority of the
person or persons who executed each of such documents on behalf of any person or
entity other than the Company, the correctness and accuracy of all certificates
of officers of the Company and the correctness and accuracy of all certificates
of various public officials.
We are members of the Bar of, and are admitted to practice only in, the
State of Georgia. Accordingly, we express no opinion herein as to the laws of
any jurisdiction other than the United States, the State of Georgia and the
Delaware General Corporation Law (the "DGCL"). To the extent that any of the
opinions contained herein requires consideration of the laws of a state other
than the State of Georgia or the DGCL, we have assumed, with your permission,
that the laws of such state are the same as the laws of the State of Georgia.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Plan against payment in full of the
purchase price therefor, will be validly issued, fully paid and nonassessable.
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Our conclusions are limited to the matters expressly set forth as our
"opinion" in the immediately preceding paragraph, and no opinion is implied or
is to be inferred beyond the matters expressly so stated. Such opinion is given
as of the date hereof, and we expressly decline any undertaking to revise or
update such opinion subsequent to the date hereof or to advise the Commission of
any matter arising subsequent to the date hereof that would cause us to modify,
in whole or in part, such opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Rogers & Hardin
----------------------------
ROGERS & HARDIN
25
Exhibit 23.1
[The following text appears as letterhead:
KPMG Peat Marwick LLP
1000 First Interstate Center
401 N. 31st Street
P.O. Box 7108
Billings, MT 59103]
Independent Auditors' Consent
The Board of Directors and Stockholders
Video Lottery Technologies, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Video Lottery Technologies, Inc. 1991 Employee Stock Purchase Plan
of our report dated February 28, 1997 with respect to the consolidated balance
sheets of Video Lottery Technologies, Inc. and subsidiaries, as of December 31,
1996 and 1995, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1996, which report appears in the Form 10-K of Video
Lottery Technologies, Inc. dated March 27, 1997.
Billings, Montana
April 7, 1997
26
