<PAGE> 1
As Filed with the Securities and Exchange Commission on January 8, 1998
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRESIDENT CASINOS, INC.
(Exact name of registrant as specified in charter)
DELAWARE 51-0341200
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
802 North First Street
St. Louis, Missouri 63102
(Address of principal executive offices) (Zip Code)
PRESIDENT CASINOS, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
----------------
James A. Zweifel
Executive Vice President and Chief Financial Officer
President Casinos, Inc.
802 North First Street
St. Louis, Missouri 63102
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (314) 622-3000
Copy to: Gerard K. Sandweg, Jr., Esq.
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
(314) 552-6000
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registra-
Registered Registered Share(2) Price(2) tion Fee
- ------------------------------------------------------------------------------
Common Stock,
$.06 par value(1) 500,000 shares $ 3.563 $1,781,500 $ 525.54
==============================================================================
(1) Included one attached Preferred Share Purchase Right per share
(2) Estimated solely for purposes of computing the Registration Fee pursuant
to the provisions of Rule 457(h), based upon the last transaction price
per share as reported on the Nasdaq National Market on January 7, 1998.
<PAGE> 2
PRESIDENT CASINOS, INC.
1997 STOCK OPTION PLAN
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by President Casinos, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated herein by
reference:
(i) The Company's latest Annual Report on Form 10-K, for the year ended
February 28, 1997.
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters ended
May 31, 1997 and August 31, 1997.
(iii) The description of the Company's Common Stock set forth under the
caption "Description of Capital Stock" in the Company's Registration
Statement on Form S-1 (File No. 33-48446), which description was
incorporated by reference into the Company's Registration Statement
on Form 8-A (File No. 0-20840), including any amendment or report
filed for the purpose of updating such description.
(iv) The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A (File
No. 0-20840), including any amendment or report filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the 1934 Act, after 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
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be made a part hereof from the date of filing of
such documents. Any statement contained herein or in a document incorporated
herein by reference shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in a
subsequently filed document incorporated herein by reference modifies 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 6. Indemnification of Directors and Officers.
Section 102 of the General Corporation Law of Delaware allows a corporation
to include in its certificate of incorporation a provision which limits
directors' personal liability to the corporation or its stockholders from
monetary damages for breach of fiduciary duty as a director, with certain
exceptions. Article Nine of the Company's Amended Certificate of
Incorporation, as amended, provides such limitation to the fullest extent
permitted by the General Corporation Law of Delaware.
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Section 145 of the General Corporation of Delaware permits the Company,
subject to the standards set forth therein, to indemnify any person in
connection with any action, suit or proceeding brought or threatened by
reasons of the fact that such person is or was a director, officer, employee
or agent of the Company or is or was serving as such with respect to another
corporation or entity at the request of the Company. Article Eight of the
Company's Amended Certificate of Incorporation and Article VIII of the
Company's Bylaws provides for full indemnification of its directors and
officers to the extent permitted by Section 145.
The Company maintains a directors' and officers' liability insurance policy
with total annual limits of $30,000,000. Subject to the limits, retentions,
exceptions and other terms and conditions of the policy, the Company's
directors and officers are insured against liability for any actual or alleged
error, misstatement, misleading statement, act or omission in the discharge of
their respective responsibilities to the Company solely in their capacity as
directors and officers of the Company.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated herein by
reference:
4.1 Amended Certificate of Incorporation of the Company is filed herewith.
4.2 Amended By-Laws of the Company, filed as Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the period ended August 31, 1997 is
incorporated herein by reference.
4.3 President Casinos, Inc. 1997 Stock Option Plan, filed as Appendix A to
the Company's Definitive Proxy Statement for the 1997 Annual Meeting of
Stockholders is incorporated herein by reference.
4.4 Rights Agreement, dated as of November 20, 1997, between the Company
and ChaseMellon Shareholder Services, L.L.C., as Rights Agreement,
filed as Exhibit 1 to the Company's Registration Statement on Form 8-A
(File No. 0-20840) is incorporated herein by reference.
5 Opinion of Thompson Coburn as to the legality of the securities to be
issued is filed herewith.
23 Consent of Deloitte & Touche LLP is filed herewith.
25 Power of Attorney (set forth on signature page hereto).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and sales are being made,
a post-effective amendment to this registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof), which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
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person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of St. Louis, State of Missouri, as of
January 8, 1998.
PRESIDENT CASINOS, INC.
By /s/ John S. Aylsworth
--------------------------------------
John S. Aylsworth, President
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We, the undersigned officers and directors of President Casinos, Inc.,
hereby severally and individually constitute and appoint John E. Connelly,
John S. Aylsworth and James A. Zweifel, and each of them, the true and lawful
attorneys and agents of each of us to execute in the name, place and stead of
each of us (individually and in any capacity stated below) any and all
amendments to this Registration Statement on Form S-8 and all instruments
necessary or advisable in connection therewith and to file the same with the
Securities and Exchange Commission, each of said attorneys and agents to have
the power to act with or without the other and to have full power and
authority to do and perform in the name and on behalf of each of the
undersigned every act whatsoever necessary or advisable to be done in the
premises as fully and to all intents and purposes as any of the undersigned
might or could do in person, and we hereby ratify and confirm our signatures
as they may be signed by our said attorneys and agents and each of them to any
and all such amendments and instruments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ John E. Connelly
- ----------------------- Chairman, Chief Executive January 8, 1998
John E. Connelly Officer and Director
(Principal Executive Officer)
/s/ James A. Zweifel
- ----------------------- Executive Vice President and January 6, 1998
James A. Zweifel Chief Financial Officer
(Principal Financial Officer)
/s/ John S. Aylsworth
- ----------------------- President and Director January 6, 1998
John S. Aylsworth
/s/ Terrence L. Wirginis
- ----------------------- Director January 8, 1998
Terrence L. Wirginis
/s/ Karl G. Andren
- ----------------------- Director January 5, 1998
Karl G. Andren
/s/ Royal P. Walker, Jr.
- ----------------------- Director January 5, 1998
Royal P. Walker, Jr.
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EXHIBIT INDEX
Exhibit No.
4.1 Amended Articles of Incorporation of the Company is filed herewith.
4.2 Amended By-Laws of the Company, filed as Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the period ended August 31, 1997 is
incorporated herein by reference.
4.3 President Casinos, Inc. 1997 Stock Option Plan, filed as Appendix A
to the Company's Definitive Proxy Statement for the 1997 Annual
Meeting of Stockholders is incorporated herein by reference.
4.4 Rights Agreement, dated as of November 20, 1997, between the Company
and ChaseMellon Shareholder Services, L.L.C., as Rights Agreement,
filed as Exhibit 1 to the Company's Registration Statement on Form
8-A (File No. 000-20840) is incorporated herein by reference.
5 Opinion of Thompson Coburn as to the legality of the securities to be
issued.
23 Consent of Deloitte & Touche LLP.
25 Power of Attorney (set forth on signature page hereto).
7
EXHIBIT 4.1
State of Delaware
PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PRESIDENT RIVERBOAT CASINOS, INC.", FILED IN THIS OFFICE ON
THE THIRD DAY OF JUNE, A.D. 1992, AT 4:15 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
2299797 8100 AUTHENTICATION: 7976564
960165470 DATE: 06-06-96
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CERTIFICATE OF INCORPORATION
OF
PRESIDENT RIVERBOAT CASINOS, INC.
-----------------------
FIRST: The name of this corporation shall be: President Riverboat
Casinos, Inc.
SECOND: The registered office of the corporation is located at 1209
Orange Street, in the city of Wilmington, County of New Castle, State of
Delaware. The name of the corporation's registered agent is The Corporation
Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful
activity or act in which corporations may be engaged under the Delaware
General Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue of Fifty Million (50,000,000) shares, consisting of Forty
Million (40,000,000) shares of common stock having a par value of $0.01 per
share and Ten Million (10,000,000) shares of Preferred Stock having a par
value of $0.01 per share.
The Board of Directors is authorized, subject to limitations
prescribed by law, to provide for the issuance of the shares of Preferred
Stock in series, and by filing a certificate pursuant to the applicable law of
the State of Delaware, to establish from time to time the number of shares to
be included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the outstanding shares of common stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the certificate or
certificates establishing any series of Preferred Stock.
FIFTH: The business and affairs of the corporation shall be managed by
or under the direction of the Board of Directors of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized to make, amend and repeal the Bylaws in accordance with the
procedures provided in the Bylaws.
SEVENTH: The corporation reserves the right to altar, amend or repeal
any provision contained in this Certificate of Incorporation in the manner now
or hereinafter prescribed by the laws of the State of Delaware. All rights
granted herein are granted subject to this reservation.
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EIGHTH: The incorporation shall indemnify the officers and directors of
the corporation and hold them harmless to the fullest extent permitted by the
provisions of the Delaware General Corporation Law. In the event that the
Delaware General Corporation Law is amended, after the filing of the
Certificate of Incorporation of which this article is a part, to authorize
corporate action further eliminating or limiting the personal liability of
directors and officers, then the liability of a director or officer of the
corporation shall be eliminated or limited to the fullest extend permitted by
the Delaware General Corporation Law, as so amended.
The corporation shall pay the expenses incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it should be ultimately determined
that he is not entitled to be indemnified by the corporation as authorized by
the Delaware Corporation Law.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director or officer of the corporation existing at the time of
such repeal or modification.
NINTH: To the fullest extent permitted by law, a director shall have no
personal liability to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Any amendment to or repeal of
this Article NINTH shall not adversely affect any right or protection of a
director of the corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
TENTH: In accordance with the terms of the Bylaws of the corporation and
subject to all the conditions and restrictions contained therein related to
the corporation's Board of Directors, the following persons shall serve as the
initial Directors of the corporation until their successors are duly elected
and qualified in accordance with Delaware Law:
1. John E. Connelly
1020 Saw Mill Blvd.
Pittsburgh, PA 15222
2. Edward S. Ellers
President Riverboat Casinos, Inc.
130 West River Drive
Davenport, IA 52801
3. Gary Armentrout
President Riverboat Casinos, Inc.
130 West River Drive
Davenport, IA 52801
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ELEVENTH: The incorporator is M. C. Kinnamon, whose mailing address is
1209 Orange Street, Wilmington, Delaware 19801.
TWELFTH: Obligations of Certain Beneficial Owners; Rights of Redemption.
A. No Person may become the Beneficial Owner of five (5%) percent
or more of any class or series of the corporation's issued and outstanding
Capital Stock unless such Person agrees in writing to: (i) provide to the
Gaming Authorities information regarding such Person, including without
limitation thereto, information regarding other gaming-related activities of
such Person and financial statements, in such form, and with such updates, as
may be required by any Gaming Authority; (ii) respond to written or oral
questions that may be propounded by any Gaming Authority; and (iii) consent to
the performance of any background investigation that may be required by any
Gaming Authority, including without limitation thereto, an investigation of
any criminal record of such Person.
B. Notwithstanding any other provision of this Certificate, but
subject to the provisions of any resolution of the Board of Directors creating
any series of preferred stock or any other class of stock which has a
preference over common stock with regard to dividends or upon liquidation,
outstanding shares of Capital Stock held by a Disqualified Holder shall be
subject to redemption at any time by the corporation by action of the Board of
Directors. The terms and conditions of such redemption shall be as follows:
(1) the redemption price of the shares to be redeemed pursuant
to this section B of Article TWELFTH shall be equal to the Fair Market Value
of such shares or such other redemption price as required by pertinent state
or federal law pursuant to which the redemption is required;
(2) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(3) if less than all the shares held by Disqualified Holders
are to be redeemed, the shares to be redeemed shall be selected in such manner
as shall be determined by the Board of Directors, which may include selection
first of the most recently purchased shares thereof, selection by lot, or
selection in any other manner determined by the Board of Directors;
(4) at least thirty (30) days' written notice of the
Redemption Date shall be given to the record holders of the shares selected to
be redeemed (unless waived in writing by any such holder) provided that the
Redemption Date may be the date on which written notice shall be given to
record holders if the cash or Redemption Securities necessary to effect the
redemption shall have been deposited in trust for the benefit of such record
holders and subject to immediate withdrawal by them upon surrender of the
stock certificates for their shares to be redeemed;
(5) from and after the Redemption Date or such earlier date as
mandated by pertinent state or federal law, any and all rights of whatever
nature, which may be held by the Beneficial Owners of shares selected for
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redemption (including without limitation any rights to vote or participate in
dividends declared on stock of the same class or series as such shares), shall
cease and terminate and they shall thenceforth be entitled only to receive the
cash or Redemption Securities payable upon redemption; and
(6) such other terms and conditions as the Board of Directors
shall determine.
C. Definitions. Capitalized terms used in this Article TWELFTH
shall have the meanings provided below:
"Affiliate" and " Associate" shall have the respective meanings
ascribed in such terms in Rule 12b-2 under the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Act"). The term
"registrant" as used in said Rule 12b-2 shall mean the corporation.
"Beneficial Owner" shall mean any Person who, singly or
together with any of such Person's Affiliates or Associates, directly or
indirectly, has "beneficial ownership" of Capital Stock (as determined
pursuant to Rule 13d-3 of the Act).
"Capital Stock" shall mean any common stock, preferred stock,
special stock, or any other class or series of stock of the corporation.
"Disqualified Holder" shall mean any Beneficial Owner of shares
of Capital Stock of the corporation or any of its Subsidiaries, whose holding
of shares or Capital Stock may result or, when taken together with the holding
of shares of Capital Stock by any other Beneficial Holder, may result, in the
judgement of the Board of Directors, in the loss or non-reinstatement of any
license or franchise from any governmental agency held by the corporation or
any Subsidiary to conduct any portion of the business of the corporation or
any Subsidiary, which license or franchise is conditioned upon some or all of
the holders of Capital Stock meeting certain criteria.
"Fair Market Value" of a share of Capital Stock shall mean the
average Closing Price for such a share for each of the forty-five (45) most
recent days during which shares of stock of such class or series shall have
been traded preceding the day on which notice of redemption shall have been
given pursuant to Paragraph (4) of section B of Article TWELFTH; provided,
however, that if shares of stock of such class or series are not traded on any
securities exchange or in the over-the-counter market, "Fair Market Value"
shall be determined by the Board of Directors in good faith; and provided,
further, however, that "Fair Market Value" as to any stockholder who purchases
any stock subject to redemption within one hundred twenty (120) days prior to
a Redemption Date shall not (unless otherwise determined by the Board of
Directors) exceed the purchase price paid for such shares. "Closing Price" on
any day means the reported closing sales price or, in case no such sale takes
place, the average of the reported closing bid and asked price on the
composite tape for the New York Stock Exchange-listed stocks, or, if stock of
the class or series in question is not quoted on such composite tape on the
New York Stock Exchange, or, if such stock is not listed on such exchange, on
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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 sales price or bid quotation for such stock on
the National Association of Securities Dealers, Inc., Automated Quotation
System (including the National Market Systems) or any system then in use, or,
if no such prices or quotations are available, the fair market value on the
day in question as determined by the Board of Directors in good faith.
"Gaming Authorities" shall mean the Iowa Racing and Gaming
Commission, the Mississippi Gaming Commission at such time as the corporation
becomes subject to its jurisdiction or any other governmental authority
regulating any form of gaming that has jurisdiction over the corporation or
its Subsidiaries.
"Person" shall mean any natural person, corporation, firm,
partnership, association, government, governmental agency, or any other
entity, whether acting in an individual, fiduciary, or any other capacity.
"Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the corporation
pursuant to section B of this Article TWELFTH.
"Redemption Securities" shall mean any debt or equity
securities of the corporation, any Subsidiary or any other corporation, or any
combination thereof, having such terms and conditions as shall be approved by
the Board of Directors and which, together with any cash to be paid as part of
the redemption price, in the opinion of any nationally recognized investment
banking firm selected by the Board of Directors (which may be a firm which
provides other investment banking, brokerage or other services to the
corporation), has a value, at the time notice of redemption is given pursuant
to paragraph (4), section B of Article TWELFTH, at least equal to the Fair
Market Value of the shares to be redeemed pursuant to section B of Article
TWELFTH (assuming, in the case of Redemption Securities to be publicly traded,
such Redemption Securities were fully distributed and subject only to normal
trading activity).
"Subsidiary" shall mean company of which a majority of any
class of equity securities is beneficially owned by the corporation or in
which the corporation or any subsidiary is a general partner.
IN WITNESS WHEREOF, the undersigned, being the incorporator herein before
named, has executed, signed and acknowledged this Certificate of Incorporation
this 3rd day of June, 1992.
/s/ M. C. Kinnamon
---------------------------------
M. C. Kinnamon
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State of Delaware
PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PRESIDENT RIVERBOAT CASINOS, INC.", FILED IN THIS OFFICE ON THE
TENTH DAY OF DECEMBER, A.D. 1992, AT 2 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
2299797 8100 AUTHENTICATION: 7976565
960165470 DATE: 06-06-96
<PAGE> 16
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
PRESIDENT RIVERBOAT CASINOS, INC.
-----------------------
PRESIDENT RIVERBOAT CASINOS, INC., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
as follows:
FIRST: That by Unanimous Written Consent, pursuant to Section 141(f) of
the Delaware General Corporation Law, the Board of Directors duly adopted a
resolution proposing and declaring advisable the following amendment to the
Corporation's Certificate of Incorporation:
That the corporation's Certificate of Incorporation be amended to add
Article Thirteenth which shall read in its entirety as follows:
"THIRTEENTH: Foreign Ownership of Common Stock
A. For purposes of this Article Thirteenth, the following terms
shall have the meanings specified below:
A Person shall be deemed to be the "Beneficial Owner" of, or to
"Beneficially Own" shares of common stock to the extent that such Person would
be deemed to be the beneficial owner thereof pursuant to Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as such rule may be amended from time to time.
"Citizen" shall mean:
(1) any individual who is a citizen of the United States, by birth,
naturalization or as otherwise authorized by law;
(2) any corporation (A) that is organized under the laws of the
United States or of a state, territory, district or possession thereof, (B) of
which not less than 75% of its stock is Beneficially Owned by Persons who are
Citizens, as defined herein, (C) whose president or chief executive officer,
chairman of the board of directors and all officers authorized to act in the
absence or disability of such Persons are Citizens, as defined herein and (D)
of which more than 50% of that number of its directors necessary to constitute
a quorum are Citizens, as defined herein;
(3) any partnership (A) that is organized under the laws of the
United States or of a state, territory, district or possession thereof, (B)
all general partners of which are Citizens, as defined herein and (C) of which
not less than a 75% interest is Beneficially Owned by Persons who are
Citizens, as defined herein;
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(4) any association or limited liability company (A) that is
organized under the laws of the United States or of a state, territory,
district or possession thereof, (B) whose president or other chief executive
officer (or equivalent position), chairman of the board of directors (or
equivalent committee or body) and all Persons authorized to act in the absence
or disability of such Persons are Citizens, as defined herein, (C) of which
not less than 75% of the voting power is Beneficially Owned by Citizens, as
defined herein and (D) of which more than 50% of that number of its directors
(or equivalent Persons) necessary to constitute a quorum are Citizens, as
defined herein;
(5) any joint venture (if not an association, corporation or
partnership) (A) that is organized under the laws of the United States or of a
state, territory, district or possession thereof and (B) all co-ventures of
which are Citizens, as defined herein; and
(6) any trust (A) that is domiciled in and existing under the laws
of the United States or of a state, territory, district or possession thereof,
(B) the trustee of which is a Citizen, as defined herein and (C) of which not
less than a 75% interest is held for the benefit of Citizens, as defined
herein.
"Non-Citizen" shall mean any Person other than a Citizen.
"Permitted Percentage" shall mean 24.9% of the shares of common
stock from time to time issued and outstanding.
"Person" shall mean an individual, partnership, corporation, trust
or other entity.
B. It is the policy of the corporation that Non-Citizens should
Beneficially Own, individually or in the aggregate, no more than the Permitted
Percentage of the common stock. If at any time Non-Citizens, individually or
in the aggregate, become the Beneficial Owners of more than the Permitted
Percentage of the common stock, then the corporation shall have the power to
take the actions prescribed in sections C, D, E, and F of this Article
Thirteenth. The provisions of this Article Thirteenth are intended to assure
that the corporation remains in continuous compliance with the citizenship
requirements of the Merchant Marine Act of 1936, as amended, the Shipping Act
of 1916, as amended (collectively, the Maritime Laws") and the regulations
promulgated thereunder. Any amendments to the Maritime Laws or the
regulations relating to the citizenship of vessel owners are deemed to be
incorporated herein by reference.
To the extent necessary to enable the corporation to submit any
proof of citizenship required by law or by contract with the United States
government (or any agency thereof), the corporation may require the record
holders and the Beneficial Owners of common stock to confirm their citizenship
status from time to time, and dividends payable with respect to stock held by
such record holder or owned by such Beneficial Owner may, in the discretion of
the Board of Directors, be withheld until confirmation of such citizenship
3
<PAGE> 18
status is received; and the stock transfer records of the corporation shall be
maintained in such manner as to enable the percentage of common stock that is
Beneficially Owned by Non-Citizens and by Citizens to be confirmed. The Board
of Directors is authorized to take such other ministerial actions or make such
interpretations as it may deem necessary or advisable in order to implement
the policy set forth in this Section B of Article Thirteenth.
C. Any transfer, or attempted transfer, of any shares of common
stock, the effect of which would be to cause one or more Non-Citizens to
Beneficially Own common stock in excess of the Permitted Percentage, shall be
ineffective as against the corporation, and neither the corporation nor its
transfer agent shall register such transfer or purported transfer on the stock
transfer records of the corporation and neither the corporation not its
transfer agent shall be required to recognize the transferee or purported
transferee thereof as a stockholder of the corporation for any purpose
whatsoever except to the extent necessary to affect any remedy available to
the corporation under this Article Thirteenth. A citizenship certificate may
be required from all transferees (and from any recipient upon original
issuance) of common stock of the corporation and, if such transferee (or
recipient) is acting as a fiduciary or nominee for a Beneficial Owner, such
Beneficial Owner, and registration of transfer (or original issuance) shall be
denied upon refusal to furnish such certificate.
D. If on any date (including any record date) the number of shares
of common stock that is Beneficially Owned by Non-Citizens is in excess of the
Permitted Percentage (such shares herein referred to as "Excess Shares"), the
corporation shall determine those shares Beneficially Owned by Non-Citizens
that constitute such Excess Shares. The determination of those shares that
constitute Excess Shares shall be made by reference to the date or dates such
shares were acquired by Non-Citizens, starting with the most recent
acquisition of shares of common stock by a Non-Citizen and including, in
reverse chronological order of acquisition, all other acquisitions of shares
of common stock by Non-Citizens from and after the acquisition of those shares
of common stock by a Non-Citizen that first caused the Permitted Percentage to
be exceeded. The determination of the corporation as to those shares that
constitute the Excess Shares shall be conclusive. Shares deemed to constitute
such Excess Shares (so long as such excess exists) not be accorded any voting
rights and shall not be deemed to be outstanding for purposes of determining
the vote required on any matter properly brought before the stockholders of
the corporation for a vote thereon. The corporation shall (so long as such
excess exists) without the payment of dividends and the sharing in any other
distribution (upon liquidation or otherwise) in respect of the Excess Shares.
At such time as the Permitted Percentage is no longer exceeded, full voting
rights shall be restored to any shares previously deemed to be Excess Shares
and any dividend or distribution with respect thereto that has been withheld
shall be due and paid solely to the record holders of such shares at the time
the Permitted Percentage is no longer exceeded.
E. Notwithstanding any other provisions of this Certificate, but
subject to the provisions of any resolution of the Board of Directors creating
any series of preferred stock or any other class of stock which has a
4
<PAGE> 19
preference over common stock with regard to dividends or upon liquidation, the
Excess Shares shall be subject to redemption at any time by the corporation by
action of the Board of Directors. The terms and conditions of such redemption
shall be as follows:
(1) the redemption price of the shares to be redeemed pursuant to
this Article Thirteenth shall be equal to the Fair Market Value of such shares
or such other redemption price as required by pertinent state or federal law
pursuant to which the redemption is required;
(2) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(3) if less than all the Excess shares are to be redeemed, the
shares to be redeemed shall be selected in such manner as set forth in Section
D of this Article Thirteenth or as otherwise determined by the Board of
Directors,
(4) at least thirty (30) days' written notice of the Redemption
Date shall be given to the record holders of the Excess Shares selected to be
redeemed (unless waived in writing by any such holder) provided that the
Redemption Date may be the date on which written notice shall be given to
record holders if the cash or Redemption Securities necessary to effect the
redemption shall have been deposited in trust for the benefit of such record
holders and subject to immediate withdrawal by them upon surrender of the
stock certificates for the Excess Shares to be redeemed;
(5) from and after the Redemption Date or such earlier date as
mandated by pertinent state or federal law, any and all rights of whatever
nature, which may be held by the record holder of Excess Shares selected for
redemption (including without limitation any rights to vote or participate in
dividends declared on stock of the same class or series as such shares), shall
cease and terminate and they shall thenceforth be entitled only to receive the
cash or Redemption Securities payable upon redemption; and
(6) such other terms and conditions as the Board of Directors shall
determine,
(7) capitalization terms used in this section E of Article
Thirteenth shall have the meanings provided below.
"Fair Market Value" of a share of Capital Stock shall mean the
average Closing Price for such a share for each of the forty-five (45) most
recent days during which shares of stock of such class or series shall have
been traded preceding the day on which notice of redemption shall have been
given pursuant to Paragraph (4) of section E of Article Thirteenth; provided,
however, that if shares of stock of such class or series are not traded on any
securities exchange or in the over-the-counter market, "Fair Market Value"
shall be determined by the Board of Directors in good faith; and provided,
further, however, that "Fair Market Value" as to any stockholder who purchases
any stock subject to redemption within one hundred twenty (120) days prior to
5
<PAGE> 20
a Redemption Date shall not (unless otherwise determined by the Board of
Directors) exceed the purchase price paid for such shares. "Closing Price" on
any day means the reported closing sales price or, in case no such sale takes
place, the average of the reported closing bid and asked price on the
composite tape for the New York Stock Exchange-listed stocks, or, if stock of
the class or series in question is not quoted on such 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 sales price or bid quotation for such stock on
the National Association of Securities Dealers, Inc., Automated Quotation
System (including the National Market Systems) or any system then in use, or,
if no such prices or quotations are available, the fair market value on the
day in question as determined by the Board of Directors in good faith.
"Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the corporation
pursuant to section 5.
"Redemption Securities" shall mean any debt or equity securities of
the corporation, any Subsidiary or any other corporation, or any combination
thereof, having such terms and conditions as shall be approved by the Board of
Directors and which, together with any cash to be paid as part of the
redemption price, in the opinion of any nationally recognized investment
banking firm selected by the Board of Directors (which may be a firm which
provides other investment banking, brokerage or other services to the
corporation), has a value, at the time notice of redemption is given pursuant
to paragraph (4), section E of Article Thirteenth, at least equal to the Fair
Market Value of the shares to be redeemed pursuant to Article Thirteenth
(assuming, in the case of Redemption Securities to be publicly traded, such
Redemption Securities were fully distributed and subject only to normal
trading activity).
F. In determining the citizenship of the Beneficial Owners or their
transferees of common stock, the corporation may rely on the stock transfer
records of the corporation and the citizenship certificates given by
Beneficial Owners or their transferees or any recipients (in the case of
original issuance) (in each case whether such certificates have been given on
their own behalf or on behalf of others) to prove the citizenship of such
Beneficial Owners, transferees or recipients of the common stock. The
determination of citizenship of Beneficial Owners and their transferees of the
common stock may also be subject to proof in such other way or ways as the
corporation may deem reasonable. The corporation may at any time require
proof, in addition to the citizenship certificates, of the Beneficial Owner or
proposed transferee of shares of common stock, and the payment of dividends
may be withheld, and any application for transfer of ownership on the stock
transfer records of the corporation may be refused, until such additional
proof is submitted.
G. Each provision of Article Thirteenth is intended to be severable
from every other provision. If any one or more of the provisions contained in
6
<PAGE> 21
this Article Thirteenth is held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of any other provision of this Article
Thirteenth shall not be affected, and this Article Thirteenth shall be
construed as if the provisions held to be invalid, illegal or unenforceable
had never been contained therein."
SECOND: That by Less Than Unanimous Written Consent, pursuant to Section
228 of the Delaware General Corporation Law, the holders of a majority of the
issued and outstanding shares of the Corporation's common stock have approved
the aforesaid amendment.
THIRD: The aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, the Corporation has duly caused this Certificate to
be signed by John E. Connelly, its Chief Executive Officer, and attested by
Mark Lohman, its Secretary, this 10th day of December, 1992.
(Corporate Seal) PRESIDENT CASINOS, INC.
/s/ John E. Connelly
-------------------------------------
John E. Connelly, Chief Executive Officer
ATTEST:
/s/ Mark Lohman
- ---------------------------
Mark Lohman, Secretary
7
<PAGE> 22
State of Delaware
PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PRESIDENT RIVERBOAT CASINOS, INC.", FILED IN THIS OFFICE ON THE
TWENTY-FOURTH DAY OF JANUARY, A.D. 1994, AT 1:30 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
2299797 8100 AUTHENTICATION: 7976566
960165470 DATE: 06-06-96
<PAGE> 23
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
PRESIDENT RIVERBOAT CASINOS, INC.
-----------------------
President Riverboat Casinos, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
as follows:
FIRST: At a duly noticed and convened meeting of the Board of Directors
of the Corporation held on October 27, 1993, at which a quorum was present and
acting throughout, the Board of Directors duly adopted resolutions proposing
and declaring advisable the following amendment to the Corporation's
Certificate of Incorporation:
That the first paragraph of Article IV of the Corporation's
Certificate of Incorporation be amended to read in its entirety as follows:
"The total number of shares of stock which the Corporation is
authorized to issue is One Hundred Ten Million (110,000,000) shares,
consisting of One Hundred Million (100,000,000) shares of Common Stock having
a par value of $.01 per share, and Ten Million (10,000,000) shares of
Preferred Stock having a par value of $.01 per share."
SECOND: That at a duly noticed and convened Annual Meeting of the
stockholders of the Corporation held December 15, 1993, at which a quorum was
present and acting throughout in person or by proxy, the stockholders of the
Corporation have approved the aforesaid amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
2
<PAGE> 24
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by John Connelly, its Chairman and Chief Executive Officer, and
attested by David Dieterich, its Corporate Secretary, this 21st day of
January, 1994.
(Corporate Seal) PRESIDENT RIVERBOAT CASINOS, INC.
By: /s/ John E. Connelly
---------------------------------
John E. Connelly
Chairman and
Chief Executive Officer
ATTEST:
/s/ David Dieterich
- -----------------------------
David Dieterich
Corporate Secretary
3
<PAGE> 25
State of Delaware
PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PRESIDENT RIVERBOAT CASINOS, INC.", CHANGING ITS NAME FROM
"PRESIDENT RIVERBOAT CASINOS, INC." TO "PRESIDENT CASINOS, INC.", FILED IN THIS
OFFICE ON THE NINETEENTH DAY OF DECEMBER, A.D. 1994, AT 11 O'CLOCK A.M.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
2299797 8100 AUTHENTICATION: 7976567
960165470 DATE: 06-06-96
<PAGE> 26
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
PRESIDENT RIVERBOAT CASINOS, INC.
-----------------------
President Riverboat Casinos, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Company"), hereby certifies as
follows:
FIRST: At a duly noticed and convened meeting of the Board of Directors
of the Company held September 14, 1994, at which a quorum was present and
acting throughout, the Board of Directors duly adopted resolutions proposing
and declaring advisable the following amendment to the Company's Certificate
of Incorporation:
That Article First of the Company's Certificate of Incorporation be
amended by striking out Article First in its entirety and inserting in lieu
thereof the following:
First: The name of this Company is President Casinos, Inc.
SECOND: That at a duly noticed and convened meeting of the stockholders
of the Company held December 15, 1994, at which a quorum was present and
acting throughout in person or by proxy, the stockholders of the Company have
approved the aforesaid amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Certificate to be signed
by Edward S. Ellers, its President and Chief Operating Officer, and attested
by David Dieterich, its Corporate Secretary, this 19th day of December, 1994.
(Corporate Seal) PRESIDENT RIVERBOAT CASINOS, INC.
By: /s/ Edward S. Ellers
---------------------------------
Edward S. Ellers, President
and Chief Operating Officer
ATTEST:
/s/ David Dieterich
- -----------------------------
David Dieterich
Corporate Secretary
2
<PAGE> 27
State of Delaware
PAGE 1
Office of the Secretary of State
-------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "PRESIDENT CASINOS, INC.", FILED IN THIS OFFICE ON THE SEVENTH
DAY OF AUGUST, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
2299797 8100 AUTHENTICATION: 8596008
971263803 DATE: 08-07-97
<PAGE> 28
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
PRESIDENT CASINOS, INC.
-----------------------
President Casinos, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a duly noticed and convened meeting of the Board of
Directors of the Company at which a quorum was present and acting throughout,
the Board of Directors duly adopted resolutions proposing and declaring
advisable the following amendment to the Corporation's Certificate of
Incorporation:
RESOLVED, that the first paragraph of Article IV of the Corporation's
Certificate of Incorporation be amended to read in its entirety as follows:
The total number of shares of stock which the Corporation is authorized
to issue is One Hundred Ten Million (110,000,000) shares, consisting of One
Hundred Million (100,000,000) shares of Common Stock having a par value of
$.06 per share, and Ten Million (10,000,000) shares of Preferred Stock having
a par value of $.01 per share.
Upon the foregoing becoming effective pursuant to The General Corporation
Law of the State of Delaware, the Corporation shall effect a one-for-six
reverse stock split (the "Reverse Stock Split") pursuant to which every six
(6) shares of the Corporation's Common Stock, par value $.01 per share (the
"Old Common Shares"), outstanding on the effective date of this Article IV
will be exchanged for one new share of the Corporation's Common Stock, par
value $.06 per share (the "New Common Shares").
No fractional New Common Shares will be issued as a result of the Reverse
Stock Split. Stockholders whose Old Common Shares are not equally divisible
by six (6) will receive one additional New Common Share for the fractional New
Common Share that such stockholder would be otherwise entitled to received as
a result of the Reverse Stock split.
SECOND: That a duly noticed and convened meeting of the stockholders of
the company held July 23, 1997, at which a quorum was present and acting
throughout in person or by proxy, the stockholders of the Company have
approved the aforesaid amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
2
<PAGE> 29
FOURTH: That the aforesaid amendment shall be effective on August 8,
1997.
IN WITNESS WHEREOF, President Casinos, Inc. has caused its corporate seal
to be hereunto affixed and this Certificate of Amendment to be signed by John
S. Aylsworth, its President and Ralph J. Vaclavik, its Assistant Secretary,
this 5th day of August, 1997.
(Corporate Seal) PRESIDENT CASINOS, INC.
/s/ John S. Aylsworth
-------------------------------------
John S. Aylsworth, President
ATTEST:
/s/ Ralph J. Vaclavik
- --------------------------------------
Ralph J. Vaclavik, Assistant Secretary
3
EXHIBIT 5
(Letterhead of Thompson Coburn)
January 8, 1998
President Casinos, Inc.
802 North First Street
St. Louis, Missouri 63102
Re: Registration Statement on Form S-8 -- 500,000 Shares of President
Casinos, Inc. Common Stock, $.06 par value, and attached Preferred Share
Purchase Rights
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by President Casinos, Inc., a Delaware corporation
(the "Company"), on January 8, 1998, with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, and pertaining
to the proposed issuance by the Company of up to 500,000 shares of the
Company's common stock, $.06 par value, and attached Preferred Share Purchase
Rights (the "Shares"), as provided in the President Casinos, Inc. 1997 Stock
Option Plan (the "Plan"), we have examined such corporate records of the
Company, such laws and such other information as we have deemed relevant,
including the Company's Certificate of Incorporation, as amended, By-Laws, as
amended, resolutions adopted by the Board of Directors relating to such
issuance, certificates received from state officials and statements we have
received from officers and representatives of the Company. In delivering this
opinion, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed
copies, the authenticity of originals of all such latter documents, and the
correctness of statements submitted to us by officers and representatives of
the Company.
Based solely on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is validly existing under the laws of
the State of Delaware; and
2. The Shares to be issued by the Company pursuant to the Registration
Statement have been duly authorized and, when issued by the Company in
accordance with the Plan, will be duly and validly issued and will be
fully paid and nonassessable.
<PAGE> 31
We consent to the filing of this opinion as an exhibit to the Registration
Statement. We further consent to the filing of copies of this opinion with
agencies of such states and other jurisdictions as you deem necessary in the
course of complying with the laws of the states and jurisdictions regarding
the sale and issuance of the Shares in accordance with the Registration
Statement.
Very truly yours,
/s/ Thompson Coburn
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 relating to the President Casinos, Inc. 1997 Stock Option Plan of our
report dated May 13, 1997, appearing in the Annual Report on Form 10-K of
President Casinos, Inc. for the year ended February 28, 1997.
/s/ Deloitte Touche, LLP
January 8, 1998
