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As filed with the Securities and Exchange Commission on July 6, 1998
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-1158484
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
BOX S
BLACK HAWK, COLORADO 80422
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(Address of principal executive offices) (Zip code)
1994 EMPLOYEES' INCENTIVE STOCK OPTION PLAN
1996 INCENTIVE STOCK OPTION PLAN
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(Full titles of plans)
STEPHEN R. ROARK, PRESIDENT
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
BOX S
BLACK HAWK, COLORADO 80422
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(Name and address of agent for service)
(303) 216-0908
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(Telephone number, including area code, of agent for service)
COPIES TO:
SAMUEL E. WING, ESQ.
JONES & KELLER, P.C.
1625 BROADWAY, SUITE 1600
DENVER, COLORADO 80202
TELEPHONE: (303) 573-1600
FACSIMILE: (303) 893-6506
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Each Class of Securities Registered(5) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock(1) 236,850 $5.85(3) $1,385,573 $409
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Common Stock(2) 321,650 5.79(4) 1,862,354 549
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Totals 558,500 -- $3,247,927 $958
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</TABLE>
(1) Shares underlying options granted to six employees under the 1994 Employees'
Incentive Stock Option Plan.
(2) Shares underlying options granted to 13 employees under the 1996 Incentive
Stock Option Plan.
(3) The option exercise prices vary from $5.63 per share to $6.19 per share; the
weighted average exercise price is $5.85.
(4) The option exercise prices vary from $5.63 per share to $7.75 per share; the
weighted average exercise price is $5.79.
(5) Any additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered by this
Registration Statement as provided in Rule 416.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Document(s) containing information specified by Part I of the form of
Registration Statement on Form S-8, promulgated under the Securities Act of
1933, as amended (the "1933 Act"), will be sent or given to participants in both
the 1994 Employees' Incentive Stock Option Plan and the 1996 Incentive Stock
Option Plan, as specified in Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the 1933 Act. Such document(s) are
not being filed with the Commission but constitute (along with the documents
incorporated by reference into this Form S-8 Registration Statement (the
"Registration Statement") pursuant to Item 3 of Part II hereof), a prospectus
that meets the requirements of Section 10(a) of the 1933 Act.
1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference into this
Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997 filed with the Securities and Exchange
Commission (the "Commission") on March 30, 1998.
2. The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998.
3. The Registrant's Current Report on Form 8-K filed with the
Commission on January 6, 1998.
4. The Registrant's Current Report on Form 8-K filed with the
Commission on April 28, 1998.
5. The Registrant's Current Report on Form 8-K filed with the
Commission on June 1, 1998.
6. The Registrant's definitive Proxy Statement dated June 4,
1998 for use at its July 2, 1998 Annual Meeting of Shareholders.
7. All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934
Act prior to the filing of a post-effective amendment that indicates
that all shares offered hereby have been sold or that deregisters all
shares then remaining unsold, shall be deemed to be incorporated by
reference and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Counsel. Samuel E. Wing, a shareholder of Jones & Keller, P.C.,
counsel to the Registrant, through his SEP/IRA Plan owns 5,000 shares of the
Registrant's common stock.
Item 6. Indemnification of Officers and Directors.
Directors, officers, employees and agents of the Registrant may be
entitled to benefit from the indemnification provisions contained in the
Colorado Business Corporation Act, Title Seven of the Colorado Revised Statutes
(the "CBCA") and the Registrant's Articles of Incorporation. In addition,
certain provisions in the CBCA and the Articles of Incorporation limit
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the liability of directors of the Registrant. The general effect of these
provisions is summarized below:
Article 109 of the CBCA permits a Colorado corporation to indemnify any
person who was or is a party or is threatened to be made a party to any suit,
action or other proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, or other enterprise. Such indemnification may
be against expenses, including attorneys' fees, judgments, fines and other
amounts in connection with such proceeding. Indemnification is available if such
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, or, with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
that the conduct was unlawful. Unless a court of competent jurisdiction
otherwise orders, indemnification is not available in connection with a
proceeding by or in the right of the corporation if the person is adjudged
liable to the corporation or derived an improper personal benefit. A corporation
is required to indemnify a director or officer who is wholly successful in the
defense of any such proceeding. Expenses (including attorneys' fees) incurred by
a director, officer, employee or agent of the corporation in defending any such
proceeding may be advanced by the corporation before the final disposition if
such person furnishes an undertaking to repay such advances if it is ultimately
determined that such person is not entitled to be indemnified. Before a
corporation may indemnify or advance expenses to a person under these
provisions, the board of directors (excluding any directors are parties to such
a proceeding), independent legal counsel appointed by the board of directors, or
the shareholders must provide authorization. A corporation may purchase
insurance against any liability of individuals for whom the corporation may
provide such indemnification. Any provisions in a corporation's articles of
incorporation, bylaws, resolutions or in a contract (except an insurance policy)
for such indemnification are valid only to the extent not inconsistent with
Article 100 of the CBCA.
Section 7-108-402 of the CBCA permits a corporation, if so provided in
the articles of incorporation, to eliminate or limit the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty. However, such a provision cannot eliminate or limit such
liability arising out of a breach of the director's duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or knowing
violations of law, unlawful distributions, or any transaction for which the
director derived an improper personal benefit. Article XV of the Company's
Articles of Incorporation provides for such elimination of director liability.
Article NINTH of the Registrant's Articles of Incorporation also
provides broad indemnification to officers, directors, employees and agents,
generally paralleling those available under the statute described above.
Article VIII of the Registrant's Bylaws provide indemnification to
officers, directors, employees and agents, again generally paralleling and
reiterating the above referenced basis of such indemnification.
Item 7. Exemption From Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Exhibit No. Description
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5 Opinion and Consent of Jones & Keller, P.C. as
to the legality of the securities being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones & Keller, P.C. (see Exhibit
No. 5).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes (1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that clauses (a)(1)(i)(ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the
Registration Statement; (2) that, for the purpose of determining any liability
under the 1933 Act, 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; and (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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act 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 1933
Act 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 Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Golden, State of Colorado, on this 2nd day of July,
1998.
BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC.
By: /s/ Stephen R. Roark
----------------------------
Stephen R. Roark, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
By: /s/ Jeffrey P. Jacobs Chairman of the Board and July 2, 1998
----------------------- Chief Executive Officer
Jeffrey P. Jacobs
By: /s/ Stephen R. Roark President and Chief Financial July 2, 1998
----------------------- and Accounting Officer and a
Stephen R. Roark Director
By: /s/ Frank B. Day Director July 2, 1998
-----------------------
Frank B. Day
By: /s/ J. Patrick McDuff Director July 2, 1998
-----------------------
J. Patrick McDuff
By: /s/ Robert H. Hughes Director July 2, 1998
-----------------------
Robert H. Hughes
By: /s/ Martin S. Winick Director July 2, 1998
-----------------------
Martin S. Winick
By: /s/ Timothy Knudsen Director July 2, 1998
-----------------------
Timothy Knudsen
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<S> <C>
5 Opinion and Consent of Jones & Keller, P.C. as to the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones & Keller, P.C. (see Exhibit No. 5).
</TABLE>
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EXHIBIT 5
[JONES & KELLER, P.C. LETTERHEAD]
July 2, 1998
Black Hawk Gaming & Development Company, Inc.
17301 West Colfax Avenue, Suite 170
Golden, Colorado 80401
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Black Hawk Gaming &
Development Company, Inc. (the "Corporation"), relating to the offer and sale of
up to 558,500 shares of the Common Stock of the Corporation (the "Common Stock")
under the 1994 Employees' Incentive Stock Option Plan and the 1996 Incentive
Stock Option Plan both approved by the Corporation's Board of Directors and by
the Corporation's shareholders (the "Plans"). In connection with your request,
we have made such examinations of the corporate records and proceedings of the
Corporation and considered such questions of law and taken such further action
as we deemed necessary or appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that when the Common
Stock has been purchased and the purchase price therefor has been paid as
described in the Registration Statement, as the same may be amended, and when
the Corporation has complied with the Securities Act of 1933, as amended, and
with the securities laws of the State of Colorado and all other jurisdictions in
which Common Stock is to be sold pursuant to the exercise of stock options
granted under the Plans, the Common Stock will be legally issued, fully paid and
non assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
JONES & KELLER, P.C.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Black Hawk Gaming & Development Company, Inc. on Form S-8 of our report dated
March 2, 1998, appearing in the Annual Report on Form 10-K of Black Hawk Gaming
& Development Company, Inc. for the year ended December 31, 1997.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Denver, Colorado
May 27, 1998
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EXHIBIT 23.2
CONSENT OF COUNSEL
Our consent appears in Exhibit 5 to this Registration Statement and is
incorporated herein by reference.
