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As filed with the Securities and Exchange Commission on November 1, 1999
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
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BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-1158484
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
BOX 21
240 MAIN STREET
BLACK HAWK, COLORADO 80422
(303) 582-1117
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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1994 EMPLOYEES' INCENTIVE STOCK OPTION PLAN
1996 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
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COPIES OF COMMUNICATIONS TO:
SAMUEL E. WING, ESQ.
JONES & KELLER, P.C.
1625 BROADWAY, SUITE 1600
DENVER, COLORADO 80202
(303) 573-1600
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount to offering price aggregate Amount of
securities to be registered be registered(1) per share offering price registration fee
- --------------------------- ---------------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 412,050 $5.63 $2,319,841 $ 644.92(2)
Common Stock 35,000 $5.81 $ 203,350 $ 56.53(2)
Common Stock 35,000 $6.19 $ 216,650 $ 60.23(2)
Common Stock 45,000 $6.75 $ 303,750 $ 84.44(2)
Common Stock 1,000 $7.75 $ 7,750 $ 2.15(2)
Common Stock 3,000 $7.88 $ 23,640 $ 6.57(2)
Common Stock 59,250 $8.38 $ 496,515 $ 138.03(2)
Common Stock 89,200 $5.38(3) $ 479,896 $ 133.41(3)
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Total 679,500 $4,051,392 $1,126.28
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</TABLE>
(1) 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.
(2) Calculated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended.
(3) Calculated in accordance with Rule 457(c) under the Securities Act of 1933,
as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The documents containing the 1994 Employees' Incentive Stock
Option Plan and the 1996 Incentive Stock Option Plan required by Item 1 of Form
S-8 will be sent or given to the pertinent individual(s) as specified by Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. The
Registrant shall maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the Registrant shall furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file with
the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our SEC filings are also available to
the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended. This Prospectus is part of a
Registration Statement we filed with the SEC. The documents we incorporate by
reference are:
A. our Annual Report on Form 10-K for the Fiscal Year Ended December
31, 1998;
B. our Quarterly Report on Form 10-Q for the quarter ended June 30,
1999;
C. the description of our Common Stock which is contained in Items 1
and 2 of our Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act on May 13, 1993.
D. all documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the shares offered hereby.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference, other than exhibits to
such documents, and any or all other documents required to be delivered to
employees of the Company pursuant to Rule 428(b) under the Securities Act.
Written requests or requests by telephone for such copies, or additional
information about the Plan and its administrator, should be directed to Stan
Politano, Black Hawk Gaming & Development Company, Inc., Box 21, Black Hawk,
Colorado 80422, (303) 582-1117.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Bylaws requires us to indemnify, to the fullest extent authorized
by applicable law, any person who is or is threatened to be made a party to any
civil, criminal, administrative, investigative, or other action or proceeding
instituted or threatened by reason of the fact that he is or was our director or
officer or is or was serving at our request as a director of officer of another
corporation, partnership, joint venture, trust or other enterprise.
Our Articles of Incorporation provides that, to the fullest extent
permitted by Colorado law, our directors and officers shall not be liable to us
or any of our shareholders for damages caused by a breach of fiduciary duty by
such director or officers.
Sections 7-109-102 and 103 of the Colorado Business Corporation Act
("CBCA") authorize the indemnification of directors and officers against
liability incurred by reason of being a director or officer and against expenses
(including attorney's fees) judgments, fines and amounts paid in settlement and
reasonably incurred in connection with any action seeking to establish such
liability, in the case of third-party claims, if the officer or director acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and in the case of actions by or in the
right of the corporation, if the officer or director acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interest of
the corporation and if such officer or director shall not have been adjudged
liable to the corporation, unless a court otherwise determines. Indemnification
is also authorized with respect to any criminal action or proceeding where the
officer or director also had no reasonable cause to believe his conduct was
unlawful.
We have entered into indemnification agreements with our executive
officers and directors which provide for certain defense costs and
reimbursements.
The above discussion of our Articles of Incorporation, bylaws, the CBCA
and the indemnification agreements is only a summary and is qualified in its
entirety by the full text of each of the foregoing.
The Company also carries a Directors' and Officers' Liability Insurance
policy for its executive officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The following documents are filed as a part of this registration
statement.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
5 Opinion of Jones & Keller, P.C. regarding legality of securities.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones & Keller, P.C. (included in their opinion filed as Exhibit 5).
24 Power of Attorney (see signature page of this Registration Statement).
</TABLE>
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 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;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities 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 Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange 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
Securities 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 Securities 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 of 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.
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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 Black Hawk, State of Colorado, on October 28, 1999.
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
By: /s/ Stephen R. Roark
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Stephen R. Roark, President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stephen R. Roark as attorney-in-fact, with the power of substitution for him in
any and all capacities, to sign any amendment to this Registration Statement and
to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting to said
attorney-in-fact, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he might or could do in person hereby ratifying
and confirming all that said attorney-in-fact, or his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below 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 Co-Chairman and Chief October 28, 1999
------------------------- Executive Officer
Jeffrey P. Jacobs
By: /s/ Stephen R. Roark President and Chief October 28, 1999
------------------------- Financial and Accounting
Stephen R. Roark Officer
By: /s/ Frank B. Day Director October 28, 1999
-------------------------
Frank B. Day
By: /s/ J. Patrick McDuff Director October 28, 1999
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J. Patrick McDuff
By: /s/ Robert H. Hughes Director October 28, 1999
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Robert H. Hughes
By: /s/ Timothy Knudsen Director October 28, 1999
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Timothy Knudsen
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
5 Opinion of Jones & Keller, P.C. regarding legality of securities.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones & Keller, P.C. (included in their opinion filed as Exhibit 5).
24 Power of Attorney (see signature page of this Registration Statement).
</TABLE>
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JONES & KELLER, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
(303) 573-1600
EXHIBIT 5
October 29, 1999
Black Hawk Gaming & Development Company, Inc.
240 Main Street
Black Hawk, Colorado 80422
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 679,500 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 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 Plans and 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.
/s/ Samuel E. Wing
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INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1
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 15, 1999, appearing in the Annual Report on Form 10-K of Black Hawk Gaming
& Development Company, Inc. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
October 28, 1999
