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FORM 10-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED) FOR THE TRANSITION PERIOD
FROM ____________ TO ___________
Commission File No. 0-21426
CASINO DATA SYSTEMS
(Exact name of registrant as specified in its charter)
NEVADA 88-0261839
(State of Incorporation) (I.R.S. Employer Identification No.)
3300 BIRTCHER DRIVE
LAS VEGAS, NEVADA 89118 (702) 269-5000
(Address of principal executive offices) (Registrant's telephone number)
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK, NO
PAR VALUE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ x ]
As of March 14, 1997, 18,035,897 shares of the Registrant's Common Stock were
outstanding. The aggregate market value of the Common Stock held by
non-affiliates of the Registrant on such date, based upon the last sale price
of the Common Stock of $5.125 per share reported on the NASDAQ National Market
on March 14, 1997, was $92,433,972. For purposes of this computation,
affiliates of the Registrant are deemed only to be the Registrant's executive
officers and directors.
DOCUMENTS INCORPORATED BY REFERENCE
PART III - Portions of the Registrant's definitive proxy statement in
connection with the 1997 Annual Meeting of Shareholders are incorporated by
reference into Items 10 through 13, inclusive.
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ITEM 1. BUSINESS
THE FOLLOWING DISCUSSION CONTAINS INFORMATION AND OTHER FORWARD-LOOKING
STATEMENTS THAT INVOLVE A NUMBER OF RISKS AND UNCERTAINTIES. THE ACTUAL RESULTS
OF CASINO DATA SYSTEMS COULD DIFFER MATERIALLY FROM HISTORICAL RESULTS OF
OPERATIONS AND THOSE DISCUSSED IN THE FORWARD-LOOKING STATEMENTS. FACTORS THAT
COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE, BUT ARE NOT LIMITED
TO, THOSE IDENTIFIED IN "ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
GENERAL
Casino Data Systems (the "Company") is a leading designer and manufacturer
of innovative technology-driven products for the gaming industry. The
Company's primary products and systems include the (i) design and manufacture
of casino management information systems, including the Company's historical
core product, the OASIS(TM) II (On-Line Accounting and Slot Information System)
System; (ii) operation of multi-site link progressive ("MSP") systems which
link gaming machines in multiple casinos to allow patrons to compete for large,
lifestyle-changing progressive jackpots; (iii) design and manufacture of
innovative gaming machines; and (iv) design and manufacture of meters, signs,
and graphics which allow the Company to offer integrated gaming systems with
custom designed glass and graphics, progressive meters, and customized overhead
signage.
Founded in 1990 by Steven Weiss, the Company's Chairman, the Company has
grown rapidly by developing and marketing technologically advanced products,
including its OASIS II casino management information systems and its Cool
Millions(TM) MSP system, and through acquisitions of businesses and technology
to complement the Company's core products. Since introduction in 1991, the
Company's OASIS II systems have been installed in over 80,000 gaming machines
in approximately 80 casinos throughout North America. During 1993, the Company
developed progressive meter technology and has since expanded and diversified
its operations through the acquisition of graphics, signs, and software
businesses. During 1994, the Company launched its Cool Millions MSP system in
Mississippi and was licensed by Nevada as a manufacturer and distributor of
gaming devices. During 1996, the Company significantly expanded its MSP
operations and at December 31, 1996 had links in approximately 60 casinos in
Nevada and approximately 20 casinos in Mississippi. During 1996, the Company
also developed the Million Coin Poker video poker machine pursuant to a
development agreement with Best Bet Products. In February 1996, the Company
entered into a series of agreements (the "Telnaes Agreements") to obtain
certain non-exclusive rights to use certain patented virtual reel technology.
Such technology can be used in reel spinning slot machines and enables the
Company to create the high odds necessary to allow large progressive jackpots.
In September, 1996, pursuant to a confidential settlement agreement , in
exchange for CDS and certain other companies granting to International Game
Technology ("IGT") all their respective rights under the Telnaes patent, IGT
has granted CDS a fully paid, nontransferable (including change of control
limitation), and royalty free license under the Telnaes patent. The Company
intends to use the Telnaes Technology to manufacture reel spinning slot
machines for general sale to casino customers and use in its MSP systems.
BUSINESS STRATEGY
The Company's objective is to become the leading designer and manufacturer
of innovative technology-driven products and services to meet the gaming
industry's evolving needs into the next century. To meet this goal, the
Company intends to continue to enhance and refine its existing products and
systems, develop new and entertaining interactive gaming devices, and continue
its research and development efforts to maintain its position as a technology
leader in each of its businesses and further integrate its operations to
provide the best possible products and services to its customers. The key
elements of the Company's strategy are described below in relation to the
Company's systems, products, and other lines of business.
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BUSINESS SEGMENTS
SYSTEMS AND PRODUCTS
Casino Management Information Systems
In order to maintain its position as a technological leader, the Company
is continuing to expand its casino management information systems. The Company
believes that sophisticated and reliable information systems will be a key
element in the continued growth and success of the gaming industry. The
Company's slot accounting and player tracking systems traditionally have been
used by casinos to monitor play and to collect, integrate and analyze data from
slot machines, MSP systems, video poker machines and other electronic gaming
devices. The Company is expanding its slot accounting and player tracking
system into a casino-wide management information system by using its
technological expertise to develop software modules that allow the OASIS II
system to support additional casino marketing, accounting, security, and
maintenance functions. OASIS II related products introduced include
ProTURBO(TM), Surveillance Monitor(TM), Maintenance Monitor(TM), SlotHOST(TM)
and RapidPAGE(TM). In addition, the Company introduced wireless radio
frequency communication capability to its OASIS II system. In March, 1997, the
Company also announced the Nevada field trial of the PitBOSS(TM) pit, cage, and
credit system and continues the development of a Windows(R) 95 and a Windows(R)
NT compatible version of OASIS II. The development of these system
enhancements will enable OASIS II to improve communications and data exchange
with the customer's hotel and other information management systems. Customers
will have the ability to customize their casino management information systems
either by adding new modules and features to their existing OASIS II systems as
expansions or upgrades or by purchasing complete systems.
OASIS II, the Company's on-line accounting and player tracking system,
forms the core of the Company's casino management information system. The
Company's casino management information systems comprise modular software
applications designed to deliver real-time solutions to the gaming industry.
The system uses advanced electronic monitoring equipment to collect, integrate,
analyze and report data from traditional slot machines, multi-site progressive
link machines, video poker and other electronic games. By linking on-line slot
accounting and player tracking information, the OASIS II system allows casinos
to perform sophisticated and customized data analysis in real-time.
BlackBart(TM), the on-line slot accounting feature of the OASIS II system,
continuously records each coin that enters, exits, or is retained by each
electronic gaming machine, monitors all jackpots and fills and calculates coin
and currency drop values. This information is rapidly and continuously
communicated to generate instant or "on-line" accounting of revenues and net
win to casinos for all types of electronic gaming machines. An automated
jackpot and fill program provides comprehensive jackpot accounting, security
and control, including support for the Company's ProTURBO line of progressive
jackpot meters, automatic federal and state tax withholding and automatic
updates to the player tracking system. The ProTURBO central controller
provides cost and operational advantages by eliminating individual controllers
for each meter and by enabling casinos to control all meters from one central
workstation, allowing casinos to reset meters without manually adjusting each
meter.
Super-PlayMate, the player tracking and marketing database feature of the
OASIS II system, allows casino operators to collect and access real-time player
marketing information. Casino marketing departments use OASIS II system data
to engage in target marketing, measure customer response to marketing efforts,
award "comps" to good customers and to measure the cost effectiveness of
various "comp" and marketing programs by comparing the expenditures with
revenues generated by a player or group. To collect player information,
casinos issue to slot players coded and individualized "slot club" cards which
are inserted into a card reader mounted on or in the slot machines. The OASIS
II system records the length of play, amount bet and casino win on each machine
played, enabling the casino to keep a record of gaming activity for each
customer. In addition, the OASIS II system can integrate manually-entered
table game data with slot machine readout to produce combined player ratings.
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The OASIS II system features OmniVIEW, a dynamic, real-time graphic
representation of the electronic gaming floor, which provides a record of all
gaming activity as it occurs. By moving a cursor around the floor plan, the
user can obtain detailed current information about any slot machine and any
player. Also included is a quarter-hour trend analysis that provides 15 minute
snapshots of casino player activity, trend activity reports for carded and
uncarded players, machine utilization and coin-in, coin-out information to help
identify trends.
The OASIS II system's SlotHOST module utilizes a small hand-held portable
device to provide real-time player information to users on the casino floor,
alerting casino management to high activity players and helping casinos
personalize their marketing. In addition, the Surveillance Monitor module is
designed to assist security and surveillance personnel by flagging certain
types of transactions with distinctive message or alarm attributes, while the
Maintenance Monitor module provides a lifetime history of maintenance problems
and procedures for each gaming machine and can be programmed to automatically
page maintenance personnel and trigger work orders when certain failure codes
are entered via keypad.
The Company continues to invest in its OASIS II casino management
information systems to maintain its technology leadership position. The
Company introduced a wireless radio frequency communications option for its
OASIS II system and is developing additional longer range wireless
communication for use by gaming riverboats. The Windows-based OASIS II systems
will offer additional features, including enhanced SQL capability and open base
connectivity, enabling the OASIS II system to exchange data with most
property-wide information management systems. The PitBOSS system will allow
casinos to operate a fully integrated pit, cage, and credit department and will
offer portable units for player rating, comps, bill/credit requests and opening
and closing game inventory. The PitBOSS system table game data can be
integrated with the Windows 95 OASIS II system data to provide complete
coverage of casino and customer transactions, reporting and accounting. The
Company has developed a Kiosk system, which is a stand alone computer operated
device similar to a bank ATM that is used for the distribution of "Comps", and
Ticket Trac, which is a gaming control system that operates through the
issuance of tickets/scripts for state jurisdictions that require casino
operators to maintain a unique type of record keeping of their gaming activity.
The Company has also developed Personal Banker, a program that manages game
credits and money deposited between the cage and the gaming device on the
casino floor. This product has been submitted for regulatory review. The
Company is currently in the final stages of development for Central Player
Database, a program that allows multi-site casino companies to manage and
develop wide area marketing programs for their player base.
Video Interactive Gaming Machines
The Company believes that its success in the video gaming business will be
dependent upon its development and marketing of state-of-the-art interactive
video gaming machines which will add entertainment value and encourage social
interaction among players to enhance the gaming experience. To that end, the
Company has developed a first generation series of video poker machines and the
Million Coin Poker video poker machine pursuant to a license and development
agreement with Best Bet Products. In addition, the Company intends to develop
new interactive video gaming devices with enhancements in production value,
computer graphics, and entertainment-focused secondary game features.
The Company has developed a proprietary video interactive gaming machine
platform which supports high-speed, high-resolution video displays and
CD-quality stereophonic sound with advanced memory and graphics capabilities.
As a result of its advanced platform, the Company is able to develop the video
poker machines which have the ability to automatically adjust the speed of its
graphics displays to match the player's speed of play, providing more rapid
dealing action for faster players. The Company intends to develop additional
interactive video gaming machines based on this platform and to develop more
advanced platforms that will support additional graphics, animation, and other
secondary game features designed to increase the entertainment value and
interactivity of video gaming.
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Reel Spinning Slot Machines
The Company intends to use the Telnaes Technology to manufacture reel
spinning slot machines for general sale to casino customers and for use in its
MSP systems. The reel spinning slot machines currently used by the Company in
its MSP systems are manufactured by a third party supplier. The Company
believes that only a small number of entities have the right to use the Telnaes
Technology to produce traditional reel spinning slot machines. In addition,
the Company also intends to use its position as an innovative designer of
gaming technology to produce reel spinning slot machines which incorporate
advanced graphics and innovative secondary game features. The Company will
seek to distinguish itself from other manufacturers by offering customized
games that offer increased entertainment value to meet the gaming industry's
evolving needs. The Company has completed development of its first reel
spinning machine and has submitted the product to regulatory agencies for lab
review and approval.
Meters, Signs, and Graphics
The Company believes that significant opportunities exist to expand its
meters, signs and graphics business through integration with the Company's MSP
systems, video interactive gaming machines and other products. The Company
believes that single, integrated product installations, as illustrated by the
Cool Millions MSP system and the Caribbean Stud video poker machine and MSP
system offer customers a cost-effective product and are the most efficient
marketing strategy for the Company's meters, signs and graphics products. The
Company intends to promote the marketing of product packages including overhead
signage, in-machine and overhead progressive meters and customized glass
design. The Company has acquired state-of-the-art production equipment to
expand the capacity and enhance the quality of its sign and graphics
production.
The Company has developed a full line of progressive meters, controllers
and progressive systems. A meter is a graphics display device for progressive
jackpots which displays current jackpot size to gaming patrons. The Company's
ProVIEW(TM) family of meters offers in-machine and overhead text messaging,
odometer jackpot effects and graphic animation sequences. The meters are
available in various sizes, configurations and resolutions. A controller is a
data transmission device that links gaming machines and meters into a
progressive system. The Company's ProLINK(TM) line of controllers allows
operation of proprietary progressive systems within one or more of a casino
operator's properties. A progressive system comprises meters and controllers
that link together slot machines, allocates a portion of each wager to a
progressive jackpot and displays the current jackpot size via overhead or
in-machine displays. The Company's ProSOLO one-machine progressive system
enables a single slot machine to offer a progressive jackpot. The Company's
ProTURBO progressive system links the ProLINK progressive technology with the
OASIS II system to create a single, highly-flexible controller that manages
both progressive communications and player tracking/slot accounting data
collection. The ProTURBO system allows the casino operator to customize or
change any of the meter-linked signs from a single networked work station,
compared with competing meter-linked signs that must be changed one at a time
from the casino floor.
The Company's CDS Graphics and Imaging subsidiary designs and manufactures
decorative flat glass and slot reel graphics, supplying the Company's MSP
system operation and video interactive games division as well as outside slot
machine manufacturers and casinos. CDS Graphics and Imaging also sells slot
glass replacement kits that allow casinos to economically update or re-image
their existing gaming machines while eliminating the need to acquire new more
expensive machines. CDS Graphics and Imaging designed the Company's Cool
Millions slot glass graphics and designed and manufactures the slot machine and
overhead sign glass for the Caribbean Stud video poker gaming machines.
The Company's CDS Signs subsidiary designs and manufactures high-quality
internal and external casino signs, including electric, fiber optic, animated
and neon displays and signs incorporating the Company's meters, which are used
as overhead displays for progressive jackpot systems. CDS Signs designs and
manufactures the majority of the overhead signs for the Cool Millions MSP
system and Caribbean Stud video poker machine.
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Professional Software Development Tools
The Company's TurboPower Software subsidiary develops advanced software
programming tools used by software professionals to develop applications for
business and industry. TurboPower's current products include the Orpheus
toolkit for Delphi, several Async communications toolkits, Object Professional
for object-oriented programming and the Data Entry Workshop and Win/Sys Library
for Windows. TurboPower's software engineers also support development of the
Company's gaming related products such as PitBOSS, and the Windows 95 and
Windows NT versions of the OASIS II system.
The Company will continue its focus on the development of advanced
software programming tools both to support the technological advancement and
innovation of the Company's products and systems and for sale to outside
software professionals. The Company's software engineers has introduced its
Orpheus(TM) for Delphi product and are assisting in the development of the
PitBOSS pit, cage and credit system and currently are supporting the
development of the Company's Windows 95 and Windows NT versions of the OASIS II
system. The Company intends to use its programming and software development
resources to continue to enhance the quality and efficiency of its products.
PROGRESSIVE OPERATIONS
MSP Systems
MSP systems link a number of gaming machines in multiple casinos to a
central computer that allocates a portion of each wager made to one or more
progressive jackpots. By linking the machines together, larger life-style
changing progressive jackpots can be awarded more frequently than with stand
alone machines due to the increased number of wagers contributing to the
jackpot on the link. The Company operates MSP systems in the states of
Mississippi and Nevada and on Native American lands which contributed
approximately 34% of the Company's 1996 total revenues. During 1996, the
Company significantly expanded its MSP systems operations, and at December 31,
1996, an aggregate 1,201 games participated in the Company's eight MSP system
links.
In order to increase its MSP system operations the Company intends to (i)
expand sales in its existing markets of Nevada, Mississippi and Native American
lands, (ii) introduce its MSP systems into additional gaming jurisdictions and,
(iii) develop new MSP system games. The Company also intends to develop MSP
systems for games to be developed on its video interactive gaming platform and
games to be developed using the Telnaes Technology. The Company has developed
multi-game MSP system software which allows the Company to add new games to its
existing MSP systems at a lower incremental cost by allowing one central site
to monitor MSP systems for several games. The new multi-game MSP system
software was introduced in the second quarter of 1996.
The Company introduced its first Cool Millions system in Mississippi in
November 1994. Cool Millions is a traditional three-coin, three-reel spinning,
dollar slot machine. As of December 31, 1996, the Company operated 127 Cool
Millions games in Mississippi. Cool Millions offers a large primary
progressive jackpot and a smaller more frequent secondary progressive jackpot.
Cool Millions differs from competing MSP systems by offering an immediate cash
pay out of $1 million on the primary jackpot with the balance of the jackpot
paid out as an annuity. Competing MSP systems currently pay out the entire
primary jackpot as an annuity.
Cool Millions operated on a test basis in Nevada from May through August
1995, at which time the Company was permitted to begin general distribution.
At December 31, 1996, the Company operated 312 linked Cool Millions machines in
casinos throughout Nevada.
The Company introduced its Cool Millions Quarters, a quarter denomination
version of Cool Millions, in Nevada in April 1996 and in Mississippi in June
1996. The Company's Cool Millions Quarters MSP systems features a million coin
($250,000) initial payment on the primary jackpot, with the balance of the
jackpot paid out as an annuity. At December 31, 1996, the Company operated 260
linked Cool
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Millions Quarters games in casinos throughout Nevada and 110 linked Cool
Millions Quarters games in Mississippi.
The Company introduced both its Cool Millions and Cool Millions Quarters
games in Native American lands in August 1996. At December 31, 1996, the
Company operated 42 linked Cool Millions games and 60 linked Cool Millions
Quarters games in Native American lands.
The Company has previously depended upon a single manufacturer to supply
it with slot machines for use in its Cool Millions and Cool Millions Quarters
MSP operations. The Company does not foresee any additional purchases of slot
machines from this manufacturer. The Company intends to use current inventory
of slot machines and the reel spinning slot machines it produces for future
expansion of MSP operations.
The Company introduced its Caribbean Stud video poker game link in field
trial Nevada in April 1996 and in Mississippi in September 1996. Caribbean
Stud is a variation of five card stud poker that is played as a live table game
in casinos worldwide. At December 31, 1996, the Company operated 236 linked
Caribbean Stud video poker games in Nevada and 54 Caribbean Stud video poker
games in Mississippi. Unlike the Cool Millions MSP products, where the Company
receives a percentage of each coin wagered, the Company only receives a
percentage of the progressive bets made on the Caribbean Stud video poker
machines. The progressive bet is optional and the Company's Caribbean Stud
progressive revenues will depend on how frequently players place progressive
bets. In addition to placing Caribbean Stud at no cost to the casinos, the
Company is responsible for paying the primary jackpot which is paid in twenty,
annual installment as well as smaller secondary jackpots.
On February 5, 1996, the Company entered into an agreement (the "CTI
Agreement") with CTI, licensee of certain intellectual property rights for the
Caribbean Stud video poker game, pursuant to which the Company obtained an
exclusive five-year license from CTI to use CTI's Caribbean Stud intellectual
property rights to develop and manufacture Caribbean Stud video poker machines
for sale or lease within the United States, excluding Indiana, South Carolina
and land owned by the Grand Traverse Tribe of Michigan (the "Territory").
Pursuant to the CTI Agreement, the Company has the right to sell or lease
Caribbean Stud machines to be linked to other Caribbean Stud machines via the
Company's MSP systems ("NMN Linked Machines") in Nevada, Mississippi and Native
American lands ("NMN Territory"). The Company is obligated to pay CTI a
royalty fee for each NMN Linked Machine sold or leased, such royalty fee being
subject to periodic renegotiation commencing October 1, 1997. CTI also has the
option to receive in lieu of such royalty payments one-half of the net profits
generated by the Company's NMN Linked Machine and stand-alone Caribbean Stud
operations in the NMN Territory, subject to receipt by CTI of certain gaming
licenses. In addition, the Company may be required to loan CTI certain amounts
to the extent necessary to satisfy CTI's obligations as licensee of the
Caribbean Stud intellectual property rights. The CTI Agreement provides that
the Company and CTI will negotiate definitive terms relating to the sale and
lease of stand-alone Caribbean Stud machines in the NMN Territory.
Pursuant to the CTI Agreement, the Company and CTI will form a joint
venture company ("JVCO") that will have the exclusive right to sell or lease
Caribbean Stud machines, whether stand-alone or linked to other Caribbean Stud
machines, within the Territory, excluding the NMN Territory unless and until
JVCO has acquired the Company's NMN Linked Machines operations, as described
below. The Company and CTI will each own a one-half interest in JVCO. The
Company has agreed to provide the initial capitalization for JVCO, which will
be returned to the Company plus interest thereon prior to the distribution of
any profits by JVCO. In the event JVCO receives the appropriate licenses to
operate NMN Linked Machines in any NMN Territory, the Company and CTI have
agreed that JVCO shall acquire the Company's NMN Linked Machine operations in
each such jurisdiction. Upon the acquisition by JVCO of any of the Company's
NMN Linked Machine operations, JVCO will reimburse the Company for the
Company's unrecouped costs of such operations plus interest thereon, and CTI's
royalty rights and related profit-sharing option will be terminated. In
addition, in the event that either JVCO has not acquired the Company's NMN
Linked Machine operations in each of the jurisdictions in the NMN Territory or
CTI has
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not exercised its option described above by January 1, 2001, the Company and
CTI have agreed to negotiate a permanent license for such jurisdictions.
Although the Company believes the intellectual property rights acquired
pursuant to the CTI Agreement are valid and enforceable, there can be no
assurance as to the extent, validity and enforceability of such rights.
Shuffle Master, Inc. has requested that the patent office reexamine four
patents licensed to the Company by CTI. There can be no assurance of the
outcome of such reexamination. If such patents or other licensed intellectual
property rights were held to be invalid, unenforceable or limited in scope so
as not to fully protect the Company's exclusive rights to develop, manufacture
and sell the Caribbean Stud video poker machine within its territory, or were
it to be determined that such lights were not validly transferred to the
Company, the Company may incur a substantial write-off of the costs of
developing and manufacturing the Caribbean Stud video poker machine, may incur
liability to third parties and may be limited in its present plan to introduce
the Caribbean Stud video poker machine. In addition, were these rights found to
be invalid, unenforceable or otherwise limited in scope, other competitors
could not be precluded from developing (and likely would develop) competing
Caribbean Stud or similar video poker machines. Any of such occurrences may
have an adverse effect on the Company's operations and prospects.
The Company, in conjunction with Best Bet Products, developed the Million
Coin Poker ("MCP") video poker game. MCP is a traditional video poker game
with the opportunity to make a progressive wager and win in excess of one
million coins. Players are able to utilize a touch screen to choose a
five-card bonus hand. If a player is a dealt their chosen hand in sequence a
jackpot in excess of one million coins is awarded. The Company generates
revenues from the sale of MCP games and also monitors the progressive jackpot
system on behalf of Station Casinos, Inc. ("Station Casinos") for a modest fee.
The Company has entered into a distribution agreement with Best Bet Products
which places restrictions on how Million Coin Poker can be marketed and
requires royalty payments to Best Bet Products. These restrictions are also
impacted by certain contractual rights between Best Bet Products and Station
Casinos.
The Company has enhanced its MSP system software to permit its MSP system
central monitoring facilities to monitor data from multiple MSP systems,
including Cool Millions, Cool Millions Quarters, Caribbean Stud video poker and
Million Coin Poker MSP systems. The multi-game MSP system software allows the
Company to add new games to existing MSP systems at a lower incremental cost by
allowing one central system to monitor several MSP systems.
TECHNOLOGY RISKS, BUSINESS RISKS, EXPANSION, AND ACQUISITIONS
Risks of New and Expanding Businesses; Rapidly Changing Technology
The Company is continuing to expand and diversify its business by
developing and introducing new products and entering into new lines of business
that complement and enhance the Company's existing businesses. The Company
faces the risks, expenses, and difficulties frequently encountered by new and
rapidly expanding businesses, including, but not limited to, fluctuating cash
flow, initial high development costs of new products without corresponding
sales, pending receipt of regulatory approvals, and market introduction and
acceptance of new products. There is no assurance that the Company's new
products will be accepted in the marketplace and that regulatory approvals will
be obtained. Furthermore, in each area of the Company's business, the Company
will need to manage the transition to higher volume operations, entrance into
new markets, integration of operations and personnel from new lines of
business, control of overhead expense and the addition, training, and
management of qualified personnel. There is no assurance that the Company can
successfully manage the expansion of its MSP systems and other businesses.
The Company's development as a gaming machine manufacturer and supplier is
dependent upon numerous factors, including its ability to design, manufacture,
market, and service gaming machines that achieve player and casino acceptance
while maintaining product quality and acceptable margins. The Company must
compete against gaming machine suppliers with greater financial resources, name
recognition, established service networks, and customer relationships. The
Company believes that it will
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need to develop gaming machines that offer technological advantages or unique
entertainment features in order for the Company to be able to compete
effectively in the gaming machine market.
Each area of the Company's business is characterized by rapidly changing
technology and frequent new product introductions and enhancements. The
Company's success will depend in part on its ability to continue to enhance its
existing products and to introduce in a timely manner new products that meet
evolving customer requirements and achieve market acceptance. There can be no
assurance that the Company will be successful in identifying, developing, and
marketing new products or enhancing its existing products. The Company's
business will be adversely affected if the Company experiences delays in
developing new products or enhancements or if such products or enhancements do
not gain regulatory approval and customer acceptance.
Factors Affecting Profitability and Growth
Substantially all of the Company's revenues and profits are derived from
the gaming industry which experienced rapid jurisdictional growth during the
Company's initial years of operation. The continued profitability and growth of
the Company's business is substantially dependent upon factors that are beyond
the control of the Company, including, among others, the pace of development,
expansion and renovation of casinos, the legalization of MSP systems and other
forms of casino gaming in new jurisdictions, the continued popularity of casino
gaming as a leisure activity and increased demand by gaming customers for
progressive jackpot games and game variations providing increased payout
opportunities. The expansion of the gaming industry has slowed in recent years
and the continued expansion of gaming markets is dependent upon political,
legal and other factors which are beyond the control of the Company. As a
result of these and other factors, there is no assurance of the Company's
continued growth or profitability.
International Expansion
The Company believes that significant opportunities exist to expand into
the international gaming markets including Europe, Australia, and South Africa.
The Company evaluates such opportunities on a case-by-case basis and believes
that the introduction of Oasis II, MSP systems, video interactive gaming
machines, and meters, signs, and graphics products to the worldwide market
would be most likely be made through alliances with established technology
companies in these markets.
Acquisitions
The Company has expanded and diversified its business and operations
through the acquisition of graphics, signs, and software businesses. The
Company continues to evaluate potential strategic acquisitions and business
combinations in all areas of its business. Such acquisitions and/or business
combinations, if consummated, could have a substantial and material impact on
the Company's operations and prospects and, if such acquisitions or business
combinations involve the issuance of additional equity of the Company, may
result in additional dilution to existing shareholders.
Reliance on Key Customers
The Company has historically maintained strong business relationships with
several key casino customers including, but not limited to, Boyd Gaming, Circus
Circus Enterprises, Foxwoods, Grand Casinos, Kiland Distributing, Mirage
Resorts, and Station Casinos which have, in certain periods, accounted for a
material amount of the Company's sales. These entities accounted for
approximately 24%, 34%, and 45% of the Company's total sales during the fiscal
years ended December 31, 1996, 1995, and 1994. While each sale of casino
management information systems and other large product contracts are negotiated
independently and do not occur with specific frequency, the loss or reduction
of a major customer could have a material adverse impact on the financial
results of the Company. There can be no assurance that the Company will
maintain strong business relationships with its key customers or that products
introduced by competitors will be preferred by the Company's key customers in
the future.
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COMPETITION
The market for casino management information systems, MSP systems, gaming
machines and each of the Company's other products are difficult markets in
which to compete and there are a number of established, well-financed, and
well-known companies that compete with each of the Company's products and
services. IGT in particular enjoys a significant domestic and international
market position in the Company's primary markets, including casino management
information systems, gaming machines, and MSP systems. In addition to its
greater resources and established position in domestic and international
markets, management believes that IGT's ability to link sales of gaming
machines, casino management information systems and placement of MSP systems
provides IGT with a competitive advantage in the development, marketing, and
sale of new casino management information systems, gaming machines, and MSP
systems. The Company has established a meaningful market share in casino
management information systems in North America and modest market penetration
in multi-site progressives in Nevada, Mississippi, and on Native American
lands. The Company is in its initial stages of marketing video gaming devices
and has yet to begin marketing of its reel spinning slot machines.
The Company also competes with several other competitors in one or more
areas of the Company's markets, including, among others, Alliance Gaming (Bally
Gaming International), Sigma Gaming, Universal Distributing, Mikohn, WMS
Gaming, Acres Gaming, Video Lottery Consultants, Silicon Gaming, Aristocrat,
Atronic, Unidesa, Gaming Systems International, Lodging Systems, Inc., Yesco,
Trans Lux, Ad/Art, Suburban Graphics, and Sunkist Graphics. The development of
a successful new product or product design by a competitor could adversely
affect sales of the Company's products and, although the Company would endeavor
to respond quickly with its own competing products, no assurance can be made
that a significant new product designed by a competitor would not have a
material adverse effect on the Company's results of operations.
MARKETING AND SALES
The Company currently has approximately 25 full time sales and marketing
staff focusing on the sales of OASIS II casino management information systems,
MSP games, video poker gaming machines, and meters, signs, and graphics
products. The Company's TurboPower Software subsidiary sells its products
primarily by telephone and over the Internet. In addition to its corporate
headquarters in Las Vegas, Nevada, the Company maintains regional sales and
support offices in Sparks, Nevada and Gulfport and Tunica Mississippi, and
Atlantic City, New Jersey. The Company also distributes its products directly
to Native American casinos and through Kiland Distributing Corporation ("KDC").
INTELLECTUAL PROPERTY RIGHTS
The Company's business is dependent upon its ability to protect its
proprietary software, hardware and other intellectual property. The Company
relies primarily on a combination of patents, trademarks, non-disclosure
agreements, license agreements with its customers and suppliers, and trade
secrets to protect such intellectual property. Despite the Company's
precautions, it may be possible for unauthorized parties to copy or to possibly
reverse engineer certain portions of the Company's products or to obtain and
use information that the Company believes is proprietary. Therefore, there is
no assurance that precautionary steps taken by the Company in this regard will
be adequate to deter misappropriation of its intellectual property or
independent third party development of functionally equivalent products or that
the Company can meaningfully protect its rights to such proprietary
intellectual property. The Company has applied for patents covering certain
aspects of its MSP systems and gaming devices. There is no assurance that such
patents will be issued, or, if issued, will offer meaningful protection of such
intellectual property. In addition, whether or not such patents are issued,
others may hold or receive patents which contain claims having a scope that
covers products developed by the Company. Furthermore, there can be no
assurance that others have not developed or will not develop similar products
or technology, duplicate any of the Company's products or technology, or design
around any patents licensed to the Company, or any patents
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that may be issued in the future to the Company. The Company's use of certain
intellectual property rights relating to the Telnaes Technology and Caribbean
Stud Video Poker may be subject to challenge.
EMPLOYEES
As of December 31, 1996, the Company had approximately 500 full-time
employees. The majority of the employees are engaged in engineering,
programming, technical support and customer service, production, field
installation and support, sales and marketing, and administration. The Company
also uses a temporary agency to provide skilled workers for light manufacturing
and assembly during high-demand manufacturing periods. The Company is not
currently subject to a collective bargaining agreement and believes that its
employee relations are good.
In December 1995, the Company entered into employment agreements with six
individuals employed by IGT, to commence upon the expiration of certain one
year non-competition restrictions in December 1996. On March 13, 1996, these
individuals announced that they had entered into agreements to return to IGT to
complete a five year period of service and their intention to seek a release
from their employment agreements with the Company or a determination that such
employment agreements were legally unenforceable. A multi-faceted agreement
executed between the Company and IGT in September 1996 included the mutual
release of claims relating to the employment of these individuals.
REGULATION
Overview
The Company is subject to regulation in jurisdictions in which it operates
MSP systems and in most jurisdictions in which its products are sold or are
used by persons or entities licensed to conduct gaming activities. Such gaming
regulations vary from jurisdiction to jurisdiction and the classification and
level of the regulatory licensing, approvals and compliance to which the
Company and its products must conform also vary by jurisdiction. In certain
jurisdictions, the Company or its subsidiaries may be operating pursuant to
temporary waivers or approvals. There can be no assurance that such temporary
waivers or approvals will be maintained or become permanent. Failure by the
Company or its subsidiaries to obtain, or the loss or suspension of, any
necessary licenses, approvals or suitability findings would prevent or restrict
the Company or its subsidiaries from operating, selling or distributing its
products in most jurisdictions, which would have a material adverse effect on
the Company. In the event gaming authorities determine that an officer,
director, key employee, stockholder or other person of the Company is
unsuitable to act in such a capacity, the Company will be required to terminate
its relationship with such person, which termination could have a material
adverse effect on the Company. Although the Company has the right to redeem
shares of an unsuitable stockholder under certain circumstances, such a finding
of unsuitability could in any event have a material adverse effect on the
Company. There can be no assurance that the Company or its subsidiaries will
obtain all the necessary licenses and approvals or that its officers,
directors, key employees, their affiliates and certain other stockholders will
satisfy the suitability requirements in each jurisdiction in which the Company
or its subsidiaries seeks to operate MSP systems or in which its products are
sold or used by persons licensed to conduct gaming activities. The failure to
obtain such licenses and approvals in one jurisdiction may affect the Company's
licensure and/or approvals in other jurisdictions. In addition, a significant
delay in obtaining such licenses and approvals could have a material adverse
effect on the business prospects of the Company.
The Company's OASIS II casino management information systems, MSP systems,
and related meters, controllers and progressive systems are generally
classified as "associated equipment." "Associated equipment" is equipment that
is not classified as a "gaming device," but which has such an integral
relationship to the conduct of licensed gaming that regulatory authorities have
discretion to require suppliers of such systems to meet licensing suitability
requirements prior to or concurrent with the use of such equipment in the
respective jurisdiction. Associated equipment generally must be approved in
advance by the regulatory authorities for its use at licensed locations within
the jurisdiction. The Company
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or its distributor has complied in all material respects with the associated
equipment approval process in each jurisdiction in which it has sold OASIS II
systems.
The Caribbean Stud video poker machine and other gaming machines that may
be developed by the Company are "gaming devices." Although gaming device and
equipment regulations vary among jurisdictions, each jurisdiction requires
various licenses, approvals or permits to be held by companies and their key
personnel in connection with the manufacture and distribution of gaming devices
and equipment. The Company or one of its subsidiaries is licensed as a
manufacturer, distributor and/or supplier of gaming devices in the states of
Arizona, Connecticut (exemption), Iowa, Louisiana, Minnesota, Mississippi,
Nevada, New Jersey, South Dakota, Wisconsin, certain Native American
jurisdictions and the city of Windsor, Ontario, Canada, and has applied to be
licensed in several other jurisdictions. The Company has operated pursuant to
transactional waivers or as a supplier of associated equipment in jurisdictions
in which the Company's license applications are pending. The Company will be
required to apply for additional transactional waivers in the event it seeks to
make sales to additional casinos in such jurisdictions prior to licensing. The
Company may be required to apply for licensing as a manufacturer, distributor
and/or supplier of gaming devices or associated equipment prior to making sales
in each new jurisdiction. In addition, JVCO will be required to apply for
licensing as a distributor or supplier of gaming devices in each jurisdiction
in which it intends to distribute Caribbean Stud video poker machines. No
assurance can be given that such licenses, approvals, waivers or permits in
these or other jurisdictions will be given or renewed in the future or that the
Company or JVCO will obtain additional licenses, approvals, waivers, and
permits necessary to manufacture, distribute and/or supply gaming devices and
equipment.
As an operator of MSP systems, the Company, certain of its officers,
directors, key employees, stockholders and other affiliates are subject to
mandatory operator licensing and approval requirements, operator suitability
requirements and ongoing regulatory oversight in each jurisdiction in which it
operates MSP systems. JVCO similarly will be subject to such operator
licensing, approval and suitability requirements and ongoing regulatory
oversight in each jurisdiction in which it may seek to operate a Caribbean Stud
MSP system. On October 28, 1994, CDS Gaming received a gaming operator license
from the Mississippi Gaming Commission. On December 21, 1995, CDS Gaming was
licensed by the Nevada Gaming Commission as an operator of an inter-casino
linked system ("OILS"). The OILS license permits the Company to operate MSP
systems without being licensed to conduct gaming at each Nevada casino
participating in the MSP system. There can be no assurance that the Company,
CDS Gaming, or JVCO will obtain all of the necessary licenses and approvals or
that their officers, directors, key employees, other affiliates and certain
other stockholders will satisfy the suitability requirements in one or more
jurisdictions, or that such licenses, approvals and suitability findings, if
obtained, will not be revoked or not be renewed in the future. The laws,
regulations and procedures pertaining to gaming are subject to the
interpretation of the Regulatory Authorities and may be amended. Any changes
in such laws, regulations, or their interpretations could have a material
adverse effect on the Company.
General Regulation of Stockholders of Publicly Traded Corporations
In most jurisdictions, any beneficial owner of the Company's Common Stock
is subject on a discretionary basis to being required to file applications with
gaming regulatory authorities, be investigated and found suitable or qualified
as such. In addition, stockholders whose holdings of Common Stock exceed
certain designated percentages are subject to certain reporting and
qualification requirements imposed by state and federal gaming regulators and,
any stockholder, if found to be unsuitable, may be required to immediately
dispose of its holdings of Common Stock. The Company's Articles of
Incorporation authorize the Company to redeem at fair market value Common Stock
held by any person whose status as a shareholder may jeopardize the Company's
gaming licenses or approvals.
Nevada Regulatory Matters
The manufacture, sale, and distribution of gaming devices for use or play
in Nevada or for distribution outside of Nevada, the manufacture and
distribution of associated equipment for use in Nevada, and the operation of
inter-casino linked systems in Nevada are subject to: (i) The Nevada Gaming
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Control Act and the regulations promulgated thereunder (collectively, the
"Nevada Act"); and (ii) various local ordinances and regulations. Such
activities are subject to the licensing and regulatory control of the Nevada
Gaming Commission ("Nevada Commission"), the Nevada State Gaming Control Board
("Nevada Board"), and various local, city, and county regulatory agencies
(collectively referred to as the "Nevada Gaming Authorities").
The Company is registered by the Nevada Commission as a publicly traded
corporation (a "Registered Corporation") and has also been licensed as a
manufacturer and distributor of gaming devices. The Company has also been
found suitable to own the stock of CDS Gaming (the "Nevada Subsidiary") which
is licensed as an operator of an inter-casino linked system. As a Registered
Corporation, the Company is required periodically to submit detailed financial
and operating reports to the Nevada Commission and furnish any other
information which the Nevada Commission may require. The Company and the
Nevada Subsidiary have obtained from the Nevada Gaming Authorities the various
registrations, findings of suitability, approvals, permits and licenses in
order to engage in manufacturing, distribution and inter-casino linked system
activities in Nevada.
All gaming devices that are manufactured, sold, or distributed for use or
play in Nevada, or for distribution outside of Nevada, must be manufactured by
licensed manufacturers and distributed or sold by licensed distributors. All
gaming devices manufactured for use or play in Nevada must be approved by the
Nevada Commission before distribution or exposure for play. The approval
process for gaming devices includes rigorous testing by the Nevada Board, a
field trial and a determination as to whether the gaming device meets strict
technical standards that are set forth in the regulations of the Nevada
Commission. Associated equipment must be administratively approved by the
Chairman of the Nevada Board or his designee before it is distributed for use
in Nevada.
The Nevada Gaming Authorities may investigate any individual who has a
material relationship to, or material involvement with, the Company or the
Nevada Subsidiary in order to determine whether such individual is suitable or
should be licensed as a business associate of a gaming licensee. No person or
legal entity may acquire control of the Company without the prior approval of
the Nevada Commission. Any beneficial holder of the Company's voting
securities, regardless of the number of shares owned, may be required to file
an application, be investigated, and have his suitability determined as a
beneficial holder of the Company's voting securities if the Nevada Commission
has reason to believe that such ownership would otherwise be inconsistent with
the declared policies of the State of Nevada. The applicant must pay all costs
of investigation incurred by the Nevada Gaming Authorities in conducting any
such investigation.
The Nevada Act requires any person who acquires beneficial ownership of
more than 5% of a Registered Corporation's voting securities to report the
acquisition to the Nevada Commission. The Nevada Act requires that beneficial
owners of more than 10% of a Registered Corporation's voting securities apply
to the Nevada Commission for a finding of suitability within thirty days after
the Chairman of the Nevada Board mails the written notice requiring such
filing. Under certain circumstances, an "institutional investor," as defined
in the Nevada Act, which acquires more than 10%, but not more than 15%, of the
Registered Corporation's voting securities may apply to the Nevada Commission
for a waiver of such finding of suitability if such institutional investor
holds the voting securities for investment purposes only. An institutional
investor shall not be deemed to hold voting securities for investment purposes
unless the voting securities were acquired and are held in the ordinary course
of business as an institutional investor and not for the purpose of causing,
directly or indirectly, the election of a majority of the members of the board
of directors of the Registered Corporation, any change in the Registered
Corporation's corporate charter, bylaws, management, policies or operations of
the Registered Corporation, or any of its gaming affiliates, or any other
action which the Nevada Commission finds to be inconsistent with holding the
Registered Corporation's voting securities for investment purposes only.
Activities which are not deemed to be inconsistent with holding voting
securities for investment purposes only include: (i) voting on all matters
voted on by stockholder; (ii) making financial and other inquiries of
management of the type normally made by securities analysts for information
purposes and not to cause a change in its management, policies or operations;
and (iii) such other activities as the Nevada Commission may determine to be
consistent with such investment intent. If the beneficial holder of voting
securities who
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must be found suitable is a corporation, partnership or trust, it must submit
detailed business and financial information including a list of beneficial
owners. The applicant is required to pay all costs of investigation.
The Company and the Nevada Subsidiary are required to maintain a current
stock ledger in Nevada which may be examined by the Nevada Gaming Authorities
at any time. If any securities are held in trust by an agent or by a nominee,
the record holder may be required to disclose the identity of the beneficial
owner to the Nevada Gaming Authorities. A failure to make such disclosure may
be grounds for finding the record holder unsuitable. The Company will also be
required to render maximum assistance in determining the identity of the
beneficial owner.
The Company may not make a public offering of its securities, such as the
Common Stock, without the prior approval of the Nevada Commission if the
securities or proceeds therefrom are intended to be used to construct, acquire
or finance gaming facilities in Nevada, or to retire or extend obligations
incurred for such purposes.
The Company is required to file quarterly financial statements with the
Nevada Gaming Authorities which include the maintenance of certain performance
financial ratios relating to the Company's operation of multi-site
progressives. Subject to the discretion of the Chairman, or his designee, the
Nevada Gaming Authorities may require the Company to secure a letter of credit
in addition to its existing cash reserve requirements. The financial results
of the Company for the fourth quarter of 1996 fell below the interest expense
coverage ratio mandated by the Nevada Gaming Authorities while the Company
maintained the current ratio requirements. The Company satisfied the financial
ratios required by the Nevada Gaming Authorities on an annualized basis for the
1996 fiscal year.
The loss, restriction, or modification of the Company's gaming licenses
and operational orders in Nevada would have a material adverse effect on its
business and could require the Company to cease its manufacturing,
distribution, and inter-casino linked system activities in Nevada.
Mississippi Regulatory Matters
The manufacture, sale and distribution of gaming devices and associated
equipment for use or play in Mississippi and the operation of inter-casino
linked systems in Mississippi are subject to the Mississippi Gaming Control Act
and the regulations promulgated thereunder (collectively, "Mississippi Act").
Although not identical, the Mississippi Act is similar to the Nevada Gaming
Control Act. Such activities are subject to the licensing and regulatory
control of the Mississippi Gaming Commission (the "Mississippi Commission") and
the Mississippi State Tax Commission (collectively referred to as the
"Mississippi Gaming Authorities").
The laws, regulations and supervisory procedures of the Mississippi Gaming
Authorities are based upon declarations of public policy which are concerned
with, among other things: (i) the prevention of unsavory or unsuitable persons
from having a direct or indirect involvement with gaming, or manufacturing or
distribution of gaming devices at any time or in any capacity; (ii) the
establishment and maintenance of responsible accounting practices and
procedures; (iii) the maintenance of effective controls over the financial
practices of licensees, including the establishment of minimum procedures for
internal fiscal affairs and the safeguarding of assets and revenues, providing
reliable record keeping and requiring the filing of periodic reports with the
Mississippi Gaming Authorities; (iv) the prevention of cheating and fraudulent
practices; (v) provide a source of state and local revenues through taxation
and licensing fees, and (vi) to ensure that gaming licensees, to the extent
practicable, employ Mississippi residents. Change in such laws, regulations and
procedures could have an adverse effect on the Company and the Company's
Mississippi operations.
The Company is registered by the Mississippi Commission as a publicly
traded corporation (a "Registered Corporation") and holding company of CDS
Services Company and CDS Gaming Company (separately, a "Mississippi Subsidiary"
or collectively, the "Mississippi Subsidiaries"). As a Registered Corporation,
the Company is required periodically to submit detailed financial and operating
reports to the
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Mississippi Commission and furnish any other information which the Mississippi
Commission may require. No person may become a stockholder of, or receive any
percentage of profits from, the Mississippi Subsidiaries without first
obtaining licenses and approvals from the Mississippi Gaming Authorities. The
Company and the Mississippi Subsidiaries have obtained from the Mississippi
Gaming Authorities the various registrations, approvals, permits and licenses
in order to engage in manufacturing, distribution and gaming activities as
presently conducted in Mississippi.
Manufacturers' and distributors' licenses and gaming licenses are not
transferable, are initially issued for a two-year period and must be renewed
periodically thereafter.
All gaming devices that are manufactured, sold or distributed for use or
play in Mississippi must be manufactured by licensed manufacturers, and
distributed or sold by licensed distributors. All gaming devices manufactured
for use or play in Mississippi must be approved by the Mississippi Commission
before distribution or exposure for play. The approval process for gaming
devices includes rigorous testing by the Mississippi Commission, a field trial
and a determination as to whether the gaming device meets strict technical
standards that are set forth in the regulations of the Mississippi Commission.
Associated equipment must be administratively approved by the Executive
Director of the Mississippi Commission before it is distributed for use in
Mississippi.
The Mississippi Commission may investigate any individual who has a
material relationship to, or material involvement with, the Company or the
Mississippi Subsidiaries in order to determine whether such individual is
suitable or should be licensed as a business associate of a gaming licensee.
Officers, directors and certain key employees of the Mississippi Subsidiaries
are required to file applications with the Mississippi Commission and may be
required to be licensed or found suitable by the Mississippi Commission.
Officers, directors and key employees of the Company who are actively and
directly involved in gaming activities of the Mississippi Subsidiaries may be
required to be licensed or found suitable by the Mississippi Commission. The
Company believes that findings of suitability with respect to such persons have
been applied for or obtained, although the Mississippi Commission in its
discretion may require additional persons to file applications for findings of
suitability. The Mississippi Commission may deny an application for licensing
for any cause which they deem reasonable. A finding of suitability is
comparable to licensing, and both require submission of detailed personal and
financial information followed by a thorough investigation. The applicant for
licensing or a finding of suitability must pay all the costs of the
investigation. Changes in licensed positions must be reported to the
Mississippi Commission and in addition to its authority to deny an application
for a finding of suitability or licensure, the Mississippi Commission has
jurisdiction to disapprove a change in a corporate position.
If the Mississippi Commission were to find an officer, director or key
employee unsuitable for licensing or unsuitable to continue having a
relationship with the Company or the Mississippi Subsidiaries, the companies
involved would have to sever all relationships with such person. In addition,
the Mississippi Commission may require the Company or the Mississippi
Subsidiaries to terminate the employment of any person who refuses to file
appropriate applications or whom the authorities find unsuitable to act in such
capacity. Determinations of suitability or of questions pertaining to
licensing are not subject to judicial review in Mississippi.
The Mississippi Subsidiaries are required to submit detailed financial and
operating reports to the Mississippi Commission. Substantially all material
loans, leases, sales of securities and similar financing transactions by the
Mississippi Subsidiaries are required to be reported to or approved by the
Mississippi Commission.
If it were determined that the Mississippi Act was violated by the
Mississippi Subsidiaries, the licenses they hold could be limited, conditioned,
suspended or revoked, subject to compliance with certain statutory and
regulatory procedures. In addition, at the discretion of the Mississippi
Commission, the Mississippi Subsidiaries, the Company and the persons involved
could be subject to substantial fines for each separate violation of the
Mississippi Act. Limitation, conditioning or suspension of licenses held by
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the Mississippi Subsidiaries could (and revocation of any license would)
materially adversely affect the Company's manufacturing, distribution and
inter-casino linked system operations.
Any beneficial holder of the Company's voting securities, regardless of
the number of shares owned, may be required to file an application, be
investigated, and have his suitability determined as a beneficial holder of the
Company's voting securities if the Mississippi Commission has reason to believe
that such ownership may be inconsistent with the declared policies of the State
of Mississippi. The applicant must reimburse all costs of investigation
incurred by the Mississippi Commission in conducting any such investigation.
The Mississippi Act requires any person who acquires beneficial ownership
of more than 5% of a Registered Corporation's voting securities to report the
acquisition to the Mississippi Commission and such person may be required to be
found suitable. The Mississippi Act requires that beneficial owners of more
than 10% of a Registered Corporation's voting securities apply to the
Mississippi Commission for a finding of suitability. The Mississippi
Commission has generally exercised its discretion to require a finding of
suitability of any beneficial owner of more than 5% of a Registered
Corporation's common stock. Under certain circumstances, an "institutional
investor," as defined by Mississippi Commission policy, which acquires more
than 3%, but not more than 10%, of the Registered Corporation's voting
securities may apply to the Mississippi Commission for a waiver of such finding
of suitability if such institutional investor holds the voting securities for
investment purposes only. If the beneficial holder of voting securities who
must be found suitable is a corporation, partnership or trust, it must submit
detailed business and financial information including a list of beneficial
owners. The applicant is required to pay all costs and fees that the
Mississippi Commission incurs in conducting the investigation.
Any person who fails or refuses to apply for a finding of suitability or a
license within thirty (30) days after being ordered to do so by the Mississippi
Commission or the Executive Director may be found unsuitable. The same
restrictions apply to a record owner if the record owner, after request, fails
to identify the beneficial owner. Any stockholder found unsuitable and who
holds, directly or indirectly, any beneficial ownership of the common stock of
the Company beyond such period of time as may be prescribed by the Mississippi
Commission may be guilty of a criminal offense. The Company will be subject to
disciplinary action if, after it receives notice that a person is unsuitable to
be a stockholder or to have any other relationship with the Company or the
Mississippi Subsidiaries, the Company (i) pays the unsuitable person any
dividends or interest upon voting securities of the Company, (ii) recognizes
the exercise, directly or indirectly, of any voting rights conferred through
securities held by the unsuitable person, (iii) pays the unsuitable person any
remuneration in any form for services rendered or otherwise, except in certain
limited and specific circumstances or (iv) fails to pursue all lawful efforts
to require the unsuitable person to relinquish his voting securities,
including, if necessary, the immediate purchase of said voting securities for
cash at fair market value.
The Company may be required to disclose to the Mississippi Commission upon
request the identities of security holders, including the holders of any debt
or equity securities. In addition, the Mississippi Commission under the
Mississippi Act may, in its discretion, (i) require holders of debt securities
of such Registered Corporations to file applications, (ii) investigate such
holders, and (iii) require such holders to be found suitable to own such debt
or equity securities. The Mississippi Commission retains the discretion to
require the holders of debt or equity securities to be investigated and found
suitable for any reason, including but not limited to a default on a debt
instrument, or where the holder of the debt instrument or equity security
exercises a material influence over the gaming operations of the entity in
question. Any holder of debt or equity securities required to apply for a
finding of suitability must pay all investigative fees and costs of the
Mississippi Commission in connection with such an investigation.
The Mississippi Subsidiaries are required to maintain a current stock
ledger in their principal office in Mississippi and the Company must maintain a
current list of equity stockholders in the principal office of the Mississippi
subsidiaries which must reflect the record ownership of each outstanding share
of any class of equity security issued by the Company. The stock holder list
may thereafter be maintained by adding reports regarding the ownership of such
securities that it receives from the Company's transfer
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agent. The ledger and stock holder lists must be available for inspection by
the Mississippi Commission at any time. If any securities are held in trust by
an agent or by a nominee, the record holder may be required to disclose the
identity of the beneficial owner to the Mississippi Commission. A failure to
make such disclosure may be grounds for finding the record holder unsuitable.
The Company will also be required to render maximum assistance to the
Mississippi Commission in determining the identity of the beneficial owner.
The Mississippi Commission has the power to require the stock certificates of
the Company to bear a legend indicating that the securities are subject to the
Mississippi Act and the regulations of the Mississippi Commission. The Company
has received a waiver from this requirement from the Mississippi Commission.
The Mississippi Commission has the power to impose additional restrictions on
the holders of the Company's securities at any time.
Substantially all loans, leases, sales of securities and similar financing
transactions by a Mississippi Subsidiary must be reported to or approved by the
Mississippi Commission. A Mississippi Subsidiary may not make a public
offering of its securities, but may pledge or mortgage casino facilities, if it
obtains the prior approval of the Mississippi Commission. The Company may not
make a public offering of its securities without the approval of the
Mississippi Commission if the securities or proceeds therefrom are intended to
be used to construct, acquire or finance gaming facilities in Mississippi, or
to retire or extend obligations incurred for such purposes. The Company has
received an annual renewal of continuous approval of all public offerings from
the Commission and therefore is only required to obtain the Executive
Director's approval of an offering or securities. Such approval does not
constitute a finding, recommendation or approval by the Mississippi Commission
or the Executive Director as to the accuracy or adequacy of the prospectus or
the investment merits of the securities offered. Any representation to the
contrary is unlawful.
Changes in control of the Company through merger, consolidation, stock or
asset acquisitions, management or consulting agreements certain
recapitalizations and stock repurchases by the Company, or any act or conduct
by a person whereby he obtains control, may not occur without the prior
approval of the Mississippi Commission. Entities seeking to acquire control of
the Company must satisfy the Mississippi Commission with respect to a variety
of stringent standards prior to assuming control of such company. The
Mississippi Commission may also require controlling stockholders, officers,
directors and other persons having a material relationship or involvement with
the entity proposing to acquire control, to be investigated and licensed as
part of the approval process relating to the transaction.
The Mississippi legislature has declared that some corporate acquisitions
opposed by management, repurchases of voting securities and corporate defense
tactics affecting Mississippi corporate gaming licensees, and Registered
Corporations that are affiliated with those operations, may be injurious to
stable and productive corporate gaming. The Mississippi Commission has
established a regulatory scheme to ameliorate the potentially adverse effects
of these business practices upon Mississippi's gaming industry and to further
Mississippi's policy to: (i) assure the financial stability of corporate
gaming licensees and their affiliates, (ii) preserve the beneficial aspects of
conducting business in the corporate form; and (iii) promote a neutral
environment for the orderly governance of corporate affairs. Approvals are, in
certain circumstances, required from the Mississippi Commission before the
Company can make exceptional repurchases of voting securities in excess of the
current market price thereof and before a corporate acquisition opposed by
management can be consummated. The Mississippi Act and the Mississippi
Commission gaming regulations also require prior approval of a plan of
recapitalization proposed by the Company's Board of directors in response to a
tender offer made directly to the Company's stockholders for the purposes of
acquiring control of the Company.
Neither the Company nor any subsidiary may engage in gaming activities in
Mississippi while also conducting gaming operations outside of Mississippi
without approval of the Mississippi Commission. The Mississippi Commission may
require determinations that, among other things, there are means for the
Mississippi Commission to have access to information concerning the
out-of-state gaming operations of the Company and its affiliates. The current
policy of the Mississippi Commission has been to grant a waiver from this
approval requirement. CDS Gaming Company has received a waiver from the
approval requirement of the Mississippi Commission to operate in Iowa,
Louisiana, Michigan, Nevada, North
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<PAGE> 18
Dakota, South Dakota, Wisconsin, and New Jersey. The Mississippi Commission
will need to approve or grant a waiver from the approval requirement for the
Company's or it subsidiaries' future gaming operations outside Mississippi or
in jurisdictions other than those for which a waiver has been previously
granted, prior to engaging in such future operations.
If it were determined that the Mississippi Act or a gaming regulations was
violated by the Mississippi Subsidiaries, the licenses they hold could be
limited, conditioned, suspended or revoked, subject to compliance with certain
statutory and regulatory procedures, which action, if taken, could materially
adversely affect the Company's manufacturing, distribution and inter-casino
linked system.
License fees and taxes, computed in various ways depending on the type of
gaming involved, are payable to the State of Mississippi and to the counties
and cities in which gaming operations are to be conducted. Depending upon the
particular fee or tax involved, these fees and taxes are payable either
monthly, quarterly or annually and are based upon (i) a percentage of the gross
gaming revenues received by the casino operation, (ii) the number of slot
machines operated by the casino or (iii) the number of table games operated by
the casino. The license fee payable to the State of Mississippi is based upon
"gaming receipts" (generally defined as gross receipts less payouts to
customers as winnings) and equals 4 percent of gaming receipts of $50,000 or
less per month, 6 percent of gaming receipts over $50,000 and less than
$134,000 per month, and 8 percent of gaming receipts over $134,000. Annual
license fees are also payable to the State of Mississippi for gaming licenses
and manufacturers and distributor's licenses. The foregoing license fees are
allowed as a credit against the Company's Mississippi income tax liability for
the year paid.
New Jersey Regulatory Matters
Casino gaming in New Jersey is regulated by the New Jersey Casino Control
Act, N.J.S.A. 5:12-1 et seq., and regulations promulgated thereunder (the
"NJCCA"). The NJCCA created the New Jersey Casino Control Commission
("NJCCC"), which is authorized to decide all license applications and other
matters and to promulgate regulations, and created the New Jersey Division of
Gaming Enforcement (the "NJDGE"), which is authorized to investigate all
license and product applications, make recommendations to the NJCCC, and
prosecute violations of the NJCCA. Under the NJCCA, any enterprise providing
goods or services to a casino must register with or be licensed by the NJCCC.
Business enterprises providing goods or services directly related to
casino gaming or simulcast wagering must be licensed as a gaming related Casino
Service Industry ("CSI") prior to conducting business with New Jersey casino
licensees or must have filed a complete application for CSI licensure with the
NJCCC and received the permission of the NJCCC for each business transaction.
On November 4, 1996, the Company was issued the requisite CSI license by
the NJCCC. A CSI license is issued for a period of two (2) years and is
thereafter renewable for four (4) year periods. The Company's initial CSI
license is due for renewal on November 30, 1998. There is no guarantee that,
following, the issuance of the initial CSI license or any renewal thereof, the
Company will continue to be granted renewals of the license. Additionally,
upon application of NJDGE, the NJCCC may at any time review any license issued
by it and determine to suspend, revoke, or place conditions on such license.
The failure of the Company to maintain CSI licensure may have a material effect
on the Company's business.
During the course of the NJDGE licensure investigation, the Company, its
officers, directors, key employees, and five percent stockholders demonstrated
by clear and convincing evidence their good character, honesty, integrity,
their financial stability, responsibility, and their business ability.
However, any other stockholder or other person associated with the Company who
the NJCCC deems appropriate, in its discretion, is also required to be
qualified regardless of the current license status of the Company. If a person
is required to and fails to submit to qualification or submits to qualification
and is found disqualified by the NJCCC, the NJCCC may prohibit casinos in New
Jersey from doing business with the Company. The Company's Articles of
Incorporation authorize the Company to redeem at fair market value Common Stock
held by any person whose status as a shareholder may jeopardize the Company's
gaming licenses or approvals. In the discretion of the NJCCC, such divestiture
may be deemed sufficient
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<PAGE> 19
action by the Company to retain or renew its CSI license. A change in
ownership of a controlling interest of a CSI license will void the license and
the licensee will be required to apply for a new license.
"Institutional Investors" (as defined in the NJCCA) may be granted a
waiver of the requirement to be found qualified by the NJCCC. An institutional
investor includes any retirement fund administered by a public agency for the
exclusive benefit of federal, state, or local public employees, investment
companies registered under the Investment Company Act of 1940, collective
investment trusts organized by banks under Part Nine of the Rules of the
Comptroller of the Currency, closed end investment trusts, chartered or
licensed life insurance companies or property and casualty insurance companies,
banking and other chartered or licensed lending institutions, and investment
advisors registered under The Investment Advisors Act of 1940. In the
discretion of the NJCCC, a waiver of qualifications may be granted to such
institutional investors provided the securities are owned for investment
purposes only and the institutional investor certifies that it has no intention
of influencing of affecting the affairs of the issuer or its holding companies.
In addition to the required licensure from the NJCCC, the gaming equipment
manufactured, distributed or sold by the Company to New Jersey casinos is
subject to a technical examination by the NJDGE and approval by the NJCCC for,
at a minimum, quality, design, integrity, fairness, honesty and suitability.
As part of this approval process, the NJCCC may require that the manufacturer
of any component of the gaming equipment which the NJCCC, in its discretion,
determines is essential to the gaming operation of the device submit to
licensing. Such components would include the computer control circuitry which
causes or allows the device to operate as a gambling device. The failure or
refusal of such a manufacturer to submit to licensing or the denial of a
license by the NJCCC to such manufacturer would result in the inability of the
Company to distribute and market that gambling device to New Jersey casinos.
While the Company's OASIS II casino management information system products are
presently in New Jersey casino, there can be no assurance that any
modifications to such casino information management system or other component
parts thereof would be approved by the NJCCC or that any other gaming devices
subject to approval by the NJCCC prior to use in New Jersey casinos would
receive such approval.
Federal Regulation
The Federal Gambling Devices Act of 1962 (the "Federal Act") makes it
unlawful, in general, for a person to manufacture, deliver, or receive gaming
machines, gaming machine type devices and components across state lines or to
operate gaming machines unless that person has first registered with the
Attorney General of the United States. The Company is required to register and
renew its registration annually. The Company has complied with such
registration requirements. In addition, various record keeping equipment
identification requirements are imposed by the Federal Act. Violation of the
Federal Act may result in seizure and forfeiture of the equipment, as well as
other penalties.
Native American Gaming
Gaming on Native American lands, including the terms and conditions under
which gaming equipment can be sold or leased to Native American tribes, is or
may be subject to regulation under tribal ordinances, the terms of compacts
between the tribe and the host state, the Indian Gaming Regulatory Act of 1988
("IGRA"), which is administered by the National Indian Gaming Commission (the
"NIGC") and the Secretary of the U.S. Department of the Interior (the
"Secretary"), and also may be subject to the provisions of certain statutes
relating to contracts with Native American tribes, which are administered by
the Secretary. The regulations and guidelines under which the NIGC and the
Secretary will administer IGRA are incomplete and evolving. IGRA also is
subject to interpretation by the NIGC and the secretary, and may be subject to
judicial and legislative clarification or amendment.
IGRA prohibits substantially all forms of commercial gaming on Native
American lands, including gaming involving slot machines and gaming devices,
unless (i) the tribe on whose lands the gaming will take place has adopted an
ordinance, which has been approved by the NIGC, authorizing and regulating such
gaming, and (ii) the state in which the gaming will take place permits such
gaming by any
19
<PAGE> 20
person for any purpose. If the commercial gaming involves slot machines and
gaming devices, IGRA also requires that the tribe and the state have entered
into a written agreement (a "tribal-state compact") that specifically
authorizes such types of commercial gaming, and that has been approved by the
secretary, with notice of such approval published in the Federal Register.
Tribal-state compacts vary from state to state. Many require that
equipment suppliers meet ongoing registration and licensing requirements of the
state and/or the tribe; some establish equipment standards that may limit or
prohibit the placement of progressive games on Indian lands; and some impose
background check requirements on the officers, directors, and shareholders of
gaming equipment suppliers.
In addition to federal and state governmental requirements pertaining to
gaming on Native American lands, Native American tribes are sovereign nations
with their own courts and governmental systems. Under IGRA, tribes are
required to regulate all commercial gaming under ordinances approved by the
NIGC. Such ordinances may impose standards and technical requirements on
gaming hardware and software, and may impose registration, licensing, and
background check requirements on gaming equipment suppliers and their officers,
directors, and shareholders.
Because of their sovereign status, Native American tribes possess
sovereign immunity from unconsented suit. The Company intends to seek waivers
of such immunity, where appropriate, from tribes with whom the Company does
business, but there can be no assurance that such waivers will be obtained. If
they are not, the extent of the Company's ability to enforce its agreements
with Native American tribes will be severely circumscribed.
Under doctrines enunciated by the Supreme Court of the United States,
federal and state courts are obliged, as a matter of law, to defer to the
jurisdiction of tribal courts in litigation where tribal interests are
substantially involved and where tribal courts may have jurisdiction. In such
instances, if a tribal court hears the litigation, its determinations likely
will be entitled to great deference in any state or federal court which later
might be asked to hear the matter. These facts may affect the ability of the
Company to effectively enforce its agreements with Native American tribes.
In addition to the foregoing, two federal statutes may have applicability
to commercial gaming contracts with Native American tribes:
l. Title 25, Section 81, of the United States Code states that "no
agreement shall be made by any person with any tribe of Indians, or individual
Indians not citizens of the United States, for the payment or delivery of any
money or other thing of value . . . in consideration of services for said
Indians relative to their lands. . .unless such contract or agreement be
executed and approved" by the Secretary or his or her designee. Agreements for
services relative to Native American lands which fail to conform with the
requirements of this section will be void and unenforceable, and all money or
other things of value paid under such void agreements is subject to judicial
forfeiture in litigation, which can be brought by any person, in the name of
the United States of America. In the Company's opinion, its sales contracts
are not for services, and therefore Title 25, section 81, of the United States
Code does not apply to the Company's contracts. The Company also believes that
its sales of its OASIS II systems and/or gaming devices are not "relative to
Native American lands" because, although the Company's products ultimately may
be used on Native American lands, the products themselves are not related to
such lands, and give the Company no control over such lands. To date, the
Secretary has not asserted that agreements for the sale of goods to Indian
tribes require his approval under Title 25, Section 81, United States Code.
2. Title 25, Sections 261-264, United States Code (the "Indian Trader
Licensing Act" or "ITLA") creates a licensing requirement, and states that "any
person other than an Indian of the full blood who shall attempt to reside in
the Indian country, or on any Indian reservation, as a trader, or to introduce
goods, or to trade therein, without such license, shall forfeit all merchandise
offered for sale to the Indians or found in his possession, and shall moreover
be liable to a Penalty of $500. . ." The applicability of ITLA to the
Company's sale of systems on Native American reservations are unclear. The
Company has not obtained a license under ITLA because the Company believes that
(i) ITLA does not apply to the sale of gaming
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<PAGE> 21
equipment, (ii) ITLA has been superseded by IGRA; and (iii) ITLA may have no
applicability to any transaction, since the Secretary has adopted no regulatory
mechanism to implement ITLA.
Application of Future or Additional Regulatory Requirements
In the future, the Company intends to seek the necessary registrations,
licenses, approvals and findings of suitability for the Company, its products
and its personnel in other jurisdictions throughout the world where significant
sales are anticipated to be made. However, there can be no assurance that such
registrations, licenses, approvals or findings of suitability will be obtained
and will not be revoked, suspended or conditioned or that the Company will be
able to obtain the necessary approvals for its future products as they are
developed in a timely manner, or at all. If a registration, license, approval
or finding of suitability is required by a regulatory authority and the Company
fails to seek or does not receive the necessary registration, license, approval
or finding of suitability, the Company may be prohibited from selling its
products for use in the respective jurisdiction or may be required to sell its
products through other licensed entities at a reduced profit to the Company.
Nevada Legislation - Change of Control
Two of the Nevada general corporation provisions, the "Acquisition of
Controlling Interest" and the "Combination with Interested Stockholders"
statutes, may have the effect of delaying or making it more difficult to effect
a change in control of the Company.
Generally, the Acquisition of Controlling Interest statutes prohibit an
acquiror, under certain circumstances, from voting shares of a target
corporation's stock after crossing certain threshold ownership percentages,
unless the acquiror obtains the approval of the target corporation's
disinterested stockholders. There are three thresholds: one-fifth or more but
less than one-third, one-third or more but less than a majority, and a majority
or more, of the outstanding voting power. Once an acquiror crosses one of the
above thresholds, those shares which an acquiring person or a person acting in
association with an acquiring person acquire or offer to acquire in an
acquisition, and acquire within 90 days after becoming an acquiring person
become "control shares" and such control shares are deprived of the right to
vote until disinterested stockholders restore the right. The Acquisition of
Controlling Interest statutes also provide that in the event control shares are
accorded full voting rights and the acquiring person has acquired control
shares with a majority or more of all voting power, any stockholder of record,
other than an acquiring person, who did not vote in favor of authorizing voting
rights to the control shares is entitled to demand payment for the fair value
of his or her shares. The Board of Directors must notify the dissenting
stockholders, within 20 days after the vote of the stockholders authorizing
voting rights for the control shares, that they have the right to receive the
fair value of their shares in accordance with statutory procedures established
generally for dissenters' rights.
In summary and subject to certain circumstances where they do not apply,
the Combination with Interested Stockholders statutes prevent a "resident
domestic corporation" from entering into a "combination" with an "interested
stockholder" unless certain conditions are met. A "resident domestic
corporation" (hereafter the "corporation") means any Nevada corporation that
has 200 or more stockholders. A "combination" is broadly defined and includes,
among other things, any merger or consolidation with an "interested
stockholder," or an affiliate or associate of the "interested stockholder," or
any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in
one transaction or a series of transactions with an "interested stockholder,"
or any affiliate or associate of an "interested stockholder," of assets of the
resident domestic corporation, or any subsidiary of a resident domestic
corporation: (a) having an aggregate market value equal to 5% or more of the
aggregate market value of all the assets of the corporation, (b) having an
aggregate market value equal to 5% or more of the aggregate market value of all
outstanding shares of the corporation, or (e) representing 10% or more of the
earning power or net income of the corporation. "Interested stockholder" means
the beneficial owner, directly or indirectly, of 10% or more of the voting
power of the corporation, or an affiliate or associate of the corporation that,
at any time within three years immediately before the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power of
the corporation.
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<PAGE> 22
Effective October 1, 1993, the corporation may not engage in a combination
with an interested stockholder after the expiration of three years after the
interested stockholder acquired his shares, unless the combination or purchase
of shares by the interested stockholder is approved by the corporation's board
of directors before the interested stockholder acquired his shares. If such
board of directors' approval is not obtained, the combination may be approved
by a majority of the disinterested stockholders no earlier than three years
following the date of the interested stockholder's acquisition of the shares.
A combination engaged in with an interested stockholder of the corporation more
than three years after the date that the stockholder acquired his shares may be
permissible if (a) the consideration to be received by all of the disinterested
holders of outstanding common shares of the corporation is at least equal to
the higher of (i) the highest price per share paid by the interested
stockholder within three years immediately preceding the date of the
announcement of the combination, or within three years immediately before, or
in, the transaction in which he became an interested stockholder, whichever is
higher, plus interest compounded annually, less dividends paid, but no more may
be subtracted than the amount of interest or (ii) the market value per common
share on the date of the announcement of the combination or the interested
stockholder's acquiring shares, plus interest compounded annually, less
dividends paid, but no more may be subtracted than the amount of interest, or
(b) if, in the case of shares other than common shares, the consideration to be
received by all of the disinterested holders of outstanding shares other than
common shares of the corporation is at least equal to the highest of (i) the
highest price per share paid by the interested stockholder at a time when he
was the beneficial owner of 5% or more of the outstanding voting shares of the
corporation, for any shares of that class or series of shares acquired by him
within three years immediately preceding the date of the announcement of the
combination, or within three years immediately before, or in, the transaction
in which he became an interested stockholder, whichever is higher, plus
interest compounded annually, less dividends paid, but no more may be
subtracted than the amount of interest, (ii) the highest preferential amount to
which the holders of the class or series are entitled in the event of the
voluntary liquidation of the corporation or (iii) the market value per share of
the class or series of shares on the date of the announcement of the
combination or the interested stockholder's acquiring shares, plus interest
compounded annually, less dividends paid, but no more may be subtracted than
the amount of interest.
ITEM 2. PROPERTIES
In 1995 and 1996, the Company completed substantial improvements to an
approximate 140,000 square foot office, manufacturing and assembly, warehouse,
and distribution facility in Las Vegas, Nevada which is owned by the Company.
The Company has consolidated its administrative, sales, engineering, research
and development, meters and graphics, and MSP system support staff at this
facility. The Company subleases a portion of its main facility to a third
party which will expire at the end of 1997.
The Company has leased an adjacent 45,000 square foot facility which is
occupied by the Company's sign business and has purchased two additional
adjacent buildings with approximately 17,000 square feet for expansion.
The Company also leases three facilities in Las Vegas two of which are
subleased to third parties. These leases are not expected to be renewed upon
expiration.
The Company leases regional sales and technical support offices in Sparks,
Nevada, and Gulfport, Mississippi, which also houses the Mississippi MSP system
monitoring, service and support facility and owns a 6,000 square foot sales and
technical support office near Tunica, Mississippi. The Company also leases an
approximately 4,500 square foot office in Colorado Springs, Colorado for the
TurboPower Software subsidiary. In March, 1997, the Company opened a 12,500
square foot regional office in Atlantic City, New Jersey on a three year lease.
The Company believes its existing properties, with the exception of
possible need for additional smaller regional offices, will be sufficient to
meet its current business plans.
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ITEM 3. LEGAL PROCEEDINGS
In December, 1996, a class action complaint was filed in the United States
District Court, District of Nevada, by Gary A. Edwards against the Company and
certain present and former Company executives. The complaint alleges that the
market price of the Company's common stock was artificially inflated during the
class period due to misrepresentations and omissions in press releases and
other statements made by Company's executives to the investing public.
Management believes this claim to be without merit and intends to vigorously
defend this action. While the outcome of the matter described above is not
presently determinable, management does not expect that the outcome will have
material adverse effect on the Company's results of operations, financial
position, or cash flows.
The Company and its subsidiaries are also involved from time to time in
various claims and legal actions arising in the ordinary course of business
including, but not limited to, claims brought by patrons of the Company's MSP
games wherein the patron may allege the winning of jackpot awards or some
multiple thereof. Management believes that the likelihood of success by those
making such claims are remote and that the ultimate outcome of these matters
will not have a material adverse effect on the Company's consolidated financial
statements taken as a whole. However, the ultimate outcome of a patron dispute
matter or other legal matters are not predictable and a negative ruling
against the Company could have a substantial material adverse effect on the
Company's financial statements taken as a whole.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
No matter was submitted to a vote of the Company's security-holders during
the fourth quarter of the fiscal year ended December 31, 1996.
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<PAGE> 24
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Company's Common Stock has been traded on the NASDAQ National Market
under the symbol CSDS since April 5, 1993. The following table sets forth, for
the fiscal quarters indicated, the high and low sale prices per share for the
Common Stock, as reported on the NASDAQ National Market. The following sale
prices have been adjusted to reflect a 3-for-2 stock split effected on October
11, 1995 and an additional 3-for-2 stock split effected on February 27, 1996.
<TABLE>
<CAPTION>
High Low
------ -----
<S> <C> <C>
1995
First Quarter ....................... $ 8.00 $5.11
Second Quarter ...................... 6.89 5.11
Third Quarter ....................... 13.56 6.22
Fourth Quarter ...................... 17.83 9.89
1996
First Quarter ....................... 21.00 11.50
Second Quarter ...................... 19.38 12.50
Third Quarter ....................... 20.13 12.50
Fourth Quarter ...................... $20.13 $ 6.25
</TABLE>
On March 19, 1997, the last reported sale price of the Common Stock was
$5.00. As of March 19, 1997, the Company had approximately 366 holders of
record.
The Company has never declared or paid any cash dividends on its Common
Stock and the Board of Directors intends to retain all earnings, if any, for
the use in the Company's business for the foreseeable future. Any future
determination as to declaration and payment of dividends will be made at the
discretion of the Board of Directors.
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<PAGE> 25
ITEM 6. SELECTED FINANCIAL DATA
The selected data presented below should be read in conjunction with the
Financial Statements and notes thereto included elsewhere in this Form 10-K,
and in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included elsewhere in this Form 10-K. The
selected data presented below under the captions "Selected Income Statement
Data" for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 and
"Selected Balance Sheet Data" as of the end of each of the years in the
five-year period ended December 31, 1996, are derived from the consolidated
financial statements of the Company and its subsidiaries, which financial
statements have been audited by KPMG Peat Marwick LLP, independent certified
public accountants. The consolidated financial statements as of December 31,
1996 and 1995, and for each of the years in the three-year period ended
December 31, 1996 and the report thereon, are included elsewhere in this Form
10-K. All share and per share data have been adjusted for a 3-for-2 stock
split effected on October 11, 1995 and an additional 3-for-2 stock split
effected on February 27, 1996 to shareholders of record as of February 20,
1996.
In April, 1996, the Company acquired 100% of the outstanding common stock
of Imageworks, Inc. The acquisition has been accounted for as a
pooling-of-interests combination, and accordingly, the consolidated financial
statements for periods prior to the combination have been restated to include
the results of operations of Imageworks, Inc.
<TABLE>
<CAPTION>
FISCAL YEARS ENDED DECEMBER 31,
-------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
SELECTED INCOME STATEMENT DATA:
<S> <C> <C> <C> <C> <C>
Total revenues $ 70,870,875 $32,893,502 $ 27,297,075 $11,150,029 $2,372,136
Total costs and expenses 68,900,757 26,652,511 18,086,753 6,382,623 1,583,533
------------ ----------- ------------ ----------- ----------
Income loss from operations 1,970,118 6,240,991 9,210,322 4,767,406 788,603
Total other income (expense) 5,076,656 884,917 879,833 126,728 (28,420)
------------ ----------- ------------ ----------- ----------
Income loss before income taxes 7,046,774 7,125,908 10,090,155 4,894,134 760,183
Income taxes (1) 2,232,192 2,394,214 3,555,000 1,626,000 ----
------------ ----------- ------------ ----------- ----------
Net income loss (1) $ 4,814,582 $ 4,731,694 $ 6,535,155 $ 3,268,134 $ 760,183
============ =========== ============ =========== ==========
Net income loss (1) per common
share (1) $ 0.28 $0.34 $0.50 $ 0.33 $ 0.10
============ =========== ============ =========== ==========
Shares used in per share calculations 17,485,000 13,876,000 13,114,000 9,807,730 7,931,250
============ =========== ============ =========== ==========
SELECTED BALANCE SHEET DATA:
Cash and cash equivalents $ 21,482,173 $13,156,998 $14,083,024 $3,832,020 $ 559,183
Working capital $ 58,226,061 $23,136,362 $29,950,318 $7,678,297 $ 799,472
Total assets $125,422,344 $60,307,019 $43,296,252 $9,123,380 $1,180,815
Total liabilities $ 22,245,801 $12,239,496 $ 1,567,190 $ 528,055 $ 574,560
Total term debt $ 4,482,346 $ 4,304,004 $ 587,911 -- --
Total shareholders' equity $103,176,543 $48,067,523 $41,141,151 $8,595,325 $ 606,255
</TABLE>
(1) Through December 31, 1992, the Company operated as an S corporation for
income tax purposes. The pro forma income taxes that would have been reported
if the Company had been subject to federal income taxes during the year ended
December 31, 1992 would have been $176,980, the pro forma net income would have
been $583,203, and the pro forma net income per share would have been $0.07.
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<PAGE> 26
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion and analysis of financial condition and results
of operations should be read in conjunction with the Consolidated Financial
Statements and Notes thereto included elsewhere in this Form 10-K.
GENERAL
Casino Data Systems is a leading designer and manufacturer of
technology-driven products for the gaming industry. The Company was founded in
1990 to develop and manufacture casino slot accounting systems. Since 1990,
the Company has expanded its original slot accounting system into a casino-wide
management information system. In 1992, the Company developed its first
generation of multi-site link progressive ("MSP") systems technology which
links gaming machines in different casinos to allow patrons to compete for
large, lifestyle-changing progressive jackpots. In 1993 and 1994, the Company
developed the next generation of MSP systems technology capable of supporting a
large capacity state-wide MSP system, and designed the Cool Millions MSP
system, which it launched in Mississippi in November 1994. The Company also
expanded and diversified its business and augmented its ability to design,
manufacture and customize gaming machines and MSP systems by acquiring
graphics, signs and software businesses in 1994 and 1995. In 1995, the Company
introduced its Cool Millions MSP system in Nevada on a test basis in May and
commenced state-wide rollout in August. The Company also established its Video
Interactive Gaming Division in 1995 to develop innovative gaming devices. This
division jointly developed Caribbean Stud video poker in 1995 with CTI and
jointly developed Million Coin Poker in 1996 with Best Bet Products. In
January 1996, the Company entered into the Telnaes Agreements to obtain certain
non-exclusive rights to use the Telnaes Technology. The Telnaes Technology can
be used in reel spinning slot machines to create the high odds necessary to
allow large progressive jackpots and is intended to be used by the Company in
its MSP systems.
The Company's strategic objective is to be the leading innovative designer
and manufacturer of a diversified line of technology-driven products for the
gaming industry. The Company has grown and diversified its product portfolio
through investment in research and development. The Company invested $3.1
million on research and development in 1996 and $2.9 million in 1995. These
investments have enabled the Company to develop significant enhancements to its
OASIS II system, develop a new version of its meter product, establish
manufacturing capability, and to explore the creation and development of new
and innovative video interactive gaming devices.
The Company's selling, general, and administrative expenses increased in
1996 to $21.0 million, which represented 30% of total revenues compared with
$8.8 million in 1995, which represented 27% of total revenues. The increase is
primarily attributable to increases in personnel, marketing and advertising and
facility costs resulting from the expansion and rollout of MSP operations in
Mississippi, Nevada and Native American lands in 1996. The increase in
selling, general and administrative expenses also reflects costs associated
with the addition of technical staff to support the expanding base of OASIS II
system customers, the addition of experienced gaming marketing and operations
executives, and the establishment of the Company's CDS Games Division.
The Company sells OASIS II systems, meters, signs and graphics on a cash
basis, on normal credit terms (90 days or less), and over longer term
installment contracts (generally, less than one year). Revenue from OASIS II
system sales is recorded in proportion to work completed using a method that
approximates the percentage-of-completion method, or, if the contract does not
provide for the Company's installation of the system, the sale is recorded upon
shipment. Contracts for OASIS II system sales generally specify that the price
is to be paid in three or four installments as progress is made toward
completion and that final payment under the contract is not made until the
expiration of an acceptance period during which time the customer and
applicable regulatory authorities may test and approve the Company's OASIS II
system.
26
<PAGE> 27
Systems and Products
The Company experienced an increase in OASIS II systems sales in fiscal
1996 compared to fiscal 1995. Among the key factors affecting the receipt of
new OASIS II systems orders are the rate of growth in the gaming industry,
replacement of existing systems, a broadened product line, and continued
acceptance of casino information management systems by the casino customers.
The Company does not expect that such favorable results will be repeated in
fiscal 1997 and may see sales declines in this business segment. The continued
expansion of gaming markets is dependent upon political, legal and other
factors which are beyond the control of the Company. Notable quarterly
variations in revenue and income may occur while casino management information
systems constitute a primary source of revenue.
The addition of new software modules to the OASIS II system, such as
ProTURBO, SlotHOST and Maintenance Monitor, increased the portion of OASIS II
system revenues attributable to software. The Company intends to continue to
add new software modules to further increase the functionality of the OASIS II
system. The Company is developing a Windows version of the OASIS II system and
several additional software modules. These new products will further increase
the portion of system revenues generated from software sales which could
increase the overall gross margins on OASIS II system sales. However, no
assurance can be made that the Company will successfully complete such products.
Progressive Operations
The Company introduced its first MSP system, Cool Millions, in Mississippi
in November 1994 and in Nevada in May 1995. The Company introduced its Cool
Millions Quarters product in Nevada in April 1996 and in Mississippi in June
1996. The Company also introduced its Cool Millions and Cool Millions Quarters
products in Native American lands in August 1996. An MSP system links slot
machines at various locations electronically to a central monitoring system
operated by the Company. The Company installs Cool Millions slot machines,
signage, and required communications equipment within each participating casino
in a jurisdiction at virtually no cost to the casino operator. The Company
derives revenues from the operation of its MSP systems by billing individual
casino operators on a fixed percentage basis of the coin-in or handle of the
games at the respective location. The Company maintains ownership of the Cool
Millions equipment placed in casinos and depreciates such assets over 3 to 7
years. The Company is responsible for paying the primary and secondary
jackpots awarded by the machines. The Company pays the first million coins of
the progressive jackpot immediately and pays the remainder in an annuity.
Caribbean Stud video poker was introduced in Nevada in a field trial in
April 1996 and in Mississippi in September 1996. The Company received final
product approval in Nevada in September, 1996, and continues its field trial in
Mississippi. Caribbean Stud video poker machines are installed at virtually no
cost to the casino. The Company is responsible for the primary and secondary
jackpots, and derives revenue only from optional progressive coin wagers. The
primary jackpot is paid in twenty equal, annual installments. While casinos
have experienced positive results, Caribbean Stud video poker has performed
significantly below Company revenue and profit expectations. The fixed
royalty payment to CTI was based on the original Company expectations. The
Company's business partner is currently seeking gaming licensing in Nevada
which would allow the business partner to form a joint venture with the
Company. Upon formation of the joint venture the Company would no longer pay
its business partner the fixed royalty payment. The Company is evaluating the
Caribbean Stud video poker product and the agreement with CTI to determine the
best course of action for the Company. Although the results of the licensing
hearing or the possible contract renegotiations cannot be predicted, the
outcome of these events will likely have a material impact to the Company.
In the second quarter of 1996, the Company enhanced its MSP system
software to permit its MSP system central monitoring facilities to monitor data
from multiple MSP systems, including Cool Millions, Cool Millions Quarters and
Caribbean Stud MSP systems. The multi-game MSP system allows the Company to
add new games to existing MSP systems at a lower incremental cost by allowing
one central site to monitor MSP systems for several game links.
27
<PAGE> 28
YEAR ENDED DECEMBER 31, 1996 COMPARED TO THE YEAR ENDED DECEMBER 31, 1995
Total Revenues
Total revenues increased from $32,893,502 for the year ended December 31,
1995, to $70,870,875 for the same period in 1996, an increase of $37,977,373 or
115%. The increase in total revenues is primarily attributable to an increase
in the sale of OASIS II systems and products from $19,351,830 for the year
ended December 31, 1995, to $36,156,385 for the year ended December 31, 1996,
and the increase in MSP revenues from $8,233,125 for the year ended December
31, 1995, to $23,703,094 for the year ended December 31, 1996. Revenues from
the sale of graphics, signs and software also increased from $5,308,547 for the
year ended December 31, 1995, to $8,579,701 for the year ended December 31,
1996. Revenues from the sale of video poker machines, a new product in 1996,
totaled $2,431,695.
Costs and Expenses
Cost and expenses increased from $26,652,511 for the year ended December
31, 1995, to $68,900,757 for the same period in 1996, an increase of
$42,248,246. Total costs and expenses, excluding cost of goods sold, increased
as a percentage of total revenues from 40% for the year ended December 31,
1995, to 43% for the same period in 1996. Cost of goods sold increased from
$13,626,488 for the year ended December 31, 1995, to $38,619,684 for the same
period in 1996. Gross profit as a percentage of total revenues decreased from
59% for the year ended December 31, 1995, to 46% for the same period in 1996.
The decrease in gross margin is primarily attributable to an increase in the
proportion of revenue provided by the Company's MSP operations and the initial
sale of video poker machines which carry generally lower margins compared to
the Company's historical results. Gross margin from the Company's MSP
operations were adversely impacted by the negative results of Caribbean Stud
video poker. Gross margin from the sale of OASIS systems also decreased due to
an increase in the cost of certain components and an approximate $1,800,000
charge related to inventory obsolescence and shrinkage. The Company
anticipates a continued decrease in its gross margin as revenues from its MSP
systems operations, sale of gaming devices and meters, signs and graphics
subsidiary account for a greater portion of the Company's total revenue.
Selling, general and administrative expenses increased from $8,781,040 for
the year ended December 31, 1995, to $21,004,297 for the same period in 1996,
an increase of $12,223,257. The increase is primarily attributable to the
following factors: (i) increased personnel and associated payroll and occupancy
expenses necessary to establish the CDS Games division and regional sales and
support offices, (ii) increased marketing and advertising expenses primarily
relating to the roll-out of Cool Millions Quarters and introductions of Cool
Millions products in Native American lands and (iii) the additional selling,
general and administrative expenses for the expansion of the signs and software
businesses. Selling, general and administrative expenses as a percentage of
total revenues increased from 27% for the year ended December 31, 1995, to 30%
for the same period in 1996.
The provision for doubtful accounts increased to $2,792,747 for the year
ended December 31, 1996, as compared to $88,848 for the same period in 1995.
The increase was primarily attributed to a significant receivable from a
customer that filed for bankruptcy subsequent to December 31, 1996, combined
with an overall increase in accounts receivable related to the increased sales
over the year ended December 31, 1996, compared to 1995.
Research and development expenses increased from $2,883,296 for the year
ended December 31, 1995, to $3,113,599 for the same period in 1996, an increase
of $230,303. Research and development expenses as a percentage of total
revenues decreased from 9% for the year ended December 31, 1995, to 4% for the
same period in 1996. The Company capitalized $641,629 of software development
costs for the year ended December 31, 1995, as compared to $2,316,395 for the
same period in 1996. The Company
28
<PAGE> 29
will continue to invest substantial assets in research and development as it is
committed to developing and producing technologically innovative products.
Depreciation and amortization increased from $1,272,839 for the year ended
December 31, 1995, to $3,370,430 in 1996, an increase of $2,097,591. The
increase is primarily attributable to a greater number of gaming devices placed
in service. Depreciation and amortization will continue to increase as games
are placed in service by MSP operations.
Other Income (Expense)
Other income (expense) is primarily comprised of net earnings on
investments, interest expense, rental income, and non-recurring payments that
are not the result of normal operations. Other income increased from $958,368
for the year ended December 31, 1995 to $5,558,039 for the same period in 1996
due primarily to a one-time payment from International Game Technology relating
to a multi-faceted agreement between IGT and the Company. Interest expense
increased from $73,451 for the year ended December 31, 1995 to $481,383 for the
same period in 1996 due to increased borrowings.
Net Income
Net income increased from $4,731,694 for the year ended December 31, 1995,
to $4,814,582 for the same period in 1996, an increase of $82,888. Net income
as a percentage of revenues decreased from 14% for the year ended December 31,
1995, to 7% for the same period in 1996. The decrease is primarily
attributable to (i) the charge for the provision for doubtful accounts and
inventory obsolescence and shrinkage (ii) the increase in revenues from MSP
operations and the sale of video poker machines which have traditionally lower
margins, and (iii) an increase in selling, general and administrative costs.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO THE YEAR ENDED DECEMBER 31, 1994
Total Revenues
Total revenues increased from $27,297,075 for the year ended December 31,
1994, to $32,893,502 for the same period in 1995, an increase of $5,596,427 or
21%. The increase in total revenues is primarily attributable to $8,233,125
from the expansion of the Company's MSP operations in Mississippi and Nevada
and approximately $1,800,000 in additional revenues generated by signs and
software businesses acquired during 1995. Revenues from OASIS II systems,
graphics, signs, and software decreased from $26,885,488 for the year ended
December 31, 1994 to $24,660,377 for the same period in December 31, 1995. The
decrease in revenues from OASIS II system graphics, signs, and software is
primarily attributable to the decline in the rate of growth in the gaming
industry in 1995 as compared to 1994.
Costs and Expenses
Cost and expenses increased from $18,086,753 for the year ended December
31, 1994, to $26,652,511 for the same period in 1995, an increase of
$8,565,758. Total costs and expenses, excluding cost of goods sold, increased
as a percentage of total revenues from 28% for the year ended December 31,
1994, to 40% for the same period in 1995. Cost of goods sold increased from
$10,364,436 for the year ended December 31, 1994, to $13,626,488 for the same
period in 1995. Gross margin decreased from 62% for the year ended December
31, 1994, to 59% for the same period in 1995. The decrease in gross margin is
primarily attributable to the increase in revenue contributed by the Company's
MSP system operations in relation to total revenues. Gross margin from the
Company's MSP systems operations is generally lower than the gross margins
contributed by its other products.
Selling, general and administrative expenses increased from $5,629,005 for
the year ended December 31, 1994, to $8,781,040 for the same period in 1995, an
increase of $3,152,035. The increase is primarily attributable to the
following factors: (i) increased personnel and associated payroll and
29
<PAGE> 30
occupancy expenses necessary to establish the Nevada MSP operations, the Video
Interactive Gaming Division, and regional sales and support offices, (ii)
increased marketing and advertising expenses primarily relating to MSP system
operations and (iii) the additional selling, general and administrative
expenses of the signs and software businesses that were acquired during 1995.
Selling, general and administrative expenses as a percentage of total revenues
increased from 21% for the year ended December 31, 1994, to 27% for the same
period in 1995.
Research and development expenses increased from $1,733,605 for the year
ended December 31, 1994, to $2,883,296 for the same period in 1995, an increase
of $1,149,691. Major expenditures during 1995 included the development of (i)
additional OASIS II system products; (ii) the PitBOSS pit, cage, and credit
system; (iii) the VIG-I video interactive gaming platform and the Caribbean
Stud video poker machine; (iv) the multi-game MSP system software and (v)
further refinements and enhancements to its progressive meter systems.
Research and development expenses as a percentage of total revenues increased
from 6% for the year ended December 31, 1994, to 9% for the same period in
1995.
Depreciation and amortization increased from $359,707 for the year ended
December 31, 1994, to $1,272,839 for the same period in 1995, an increase of
$913,132. This increase was primarily attributable to the increased number of
gaming devices placed in service in 1995 and to a full year of depreciation
from the Las Vegas corporate headquarters.
Other Income (Expense)
Other income (expense) is primarily comprised of net earnings on
investments, interest expense, rental income and non-recurring payments that
are not the result of normal operations. Interest and other income increased
from $922,422 for the year ended December 31, 1994, to $958,368 for the same
period in 1995, due to an increase in cash available for investment. Interest
expense increased from $42,589 for the year ended December 31, 1994 to $73,451
for the same period in 1995, due to increased borrowings.
Net Income
Net income decreased from $6,535,155 for the year ended December 31, 1994,
to $4,731,694 for the same period in 1995, a decrease of $1,803,461. The
decrease in net income was attributable to the decrease in revenue from higher
gross margin OASIS II systems and product sales and increased revenues from
lower gross margin MSP system operations. The decrease was further
attributable to the decrease in operating margin as the Company increased
research and development expenses and selling, general and administrative
expenses.
LIQUIDITY AND CAPITAL RESOURCES
The Company to date has financed its operating and capital expenditures
through cash flows from its operations, and cash from proceeds from its equity
offerings, investment activities and borrowings. The Company had cash and cash
equivalents of $21,482,173 at December 31, 1996, as compared to $13,156,998 at
December 31, 1995.
The Company used $9,800,811 of cash for operations during the year ended
December 31, 1996, compared to cash generated from operations of $6,293,470
during the same period of 1995. The most significant factors contributing to
the use of operating cash were the increase in accounts receivable due to
higher sales activity and slower collections and the increase in inventories
related Oasis and to video poker machine production.
The Company's 1996 investing activities included $16,489,321 to purchase
slot machines and related equipment for its MSP operations and two new
buildings to be used in operations; $3,658,465 for the purchase of certain
intangible assets, including the Telnaes patent; $2,316,395 investment in
software development; and $6,802,259 invested in held-to-maturity securities.
These investment activities were funded by proceeds from the issuance of
common stock and resulted in a net decrease of $29,266,440 in
30
<PAGE> 31
cash. During 1996, the Company obtained $2,078,567 constituting proceeds from
an equipment financing transaction with a commercial lender and $47,214,084 in
cash from the sale of the Company's Common Stock in a public offering and to
its employees through its 1993 Employee Stock Option and Compensation Plan.
Certain jurisdictions in which MSP systems operate require that the
Company maintain allocated funds or instruments to guarantee payment of jackpot
prizes. The amount of funds required is dependent upon several factors such as
the type and denomination of games and the local regulatory requirements. At
December 31, 1996, the Company's accrued slot liability for its MSP systems
aggregated approximately $12,100,000, and the unaccrued slot liability was
approximately $2,300,000. The unaccrued slot liability is the amount of the
initial primary jackpots that have not been fully accrued. In connection with
this slot liability and in accordance with gaming requirements, the Company
established segregated cash accounts aggregating approximately $12,000,000 at
December 31, 1996 to ensure availability of adequate funds to pay this
liability. The Company also has approximately $5,000,000 segregated as of
December 31, 1996, for the payment of jackpots already won. Although
statistically remote, a possibility exists that multiple jackpots may be hit
prior to the time period over which game play has generated sufficient revenue
to accrue each jackpot reset amount. Such occurrences could have a material
adverse impact on the Company's results of operations in the reporting period
in which the jackpots are hit.
During May 1996, the Company entered into a $20,000,000 revolving line of
credit ("line of credit") with U.S. Bank of Nevada which expires in May, 1997.
The line of credit is secured by the Company's accounts receivable, inventory
and general intangibles. The line of credit bears interest at a variable rate
equal to the bank's base rate, which was 8.25% on December 31, 1996. There
were no amounts outstanding under the line of credit at December 31, 1996.
Advances under the line are limited to a multiple of the Company's earnings
before interest, taxes, depreciation, and amortization over the past four
quarters and are also subject to maintenance of certain financial covenants
and ratios. The Company has reserved $5 million of this line of credit to
secure an irrevocable letter of credit pursuant to the equipment financing
transaction described below.
The Company has financed certain equipment under agreements for an
aggregate amount of $4,382,443. These equipment agreements are collateralized
by the related equipment and contain certain restrictive covenants, including
the requirement for a three year letter of credit securing payment in the
amount of 50% of the outstanding principal balance.
As of December 31, 1996, the Company had paid $3,199,412 in cash and
issued 166,962 unregistered shares of Common Stock, with a value of $1,733,234,
in connection with the acquisition of the Telnaes Technology pursuant to the
Telnaes Agreements. Under a multi-faceted agreement, IGT granted CDS a fully
paid, nontransferable (including change of control limitation), and royalty
free license under the Telnaes patent in exchange for CDS and certain companies
granting to IGT all their respective rights under the Telnaes patent.
In November, 1996, the Company entered into an agreement with a third
party requiring that the Company pay $330,000 in monthly installments through
March 1998 in exchange for enhancements to a series of the Company's newly
developed slot machine products anticipated for submission to gaming regulatory
agencies during 1997.
The Company's ratio of current assets to current liabilities increased
from 4.3 to 1 at December 31, 1995 to 6.5 to 1 at December 31, 1996, while the
noncurrent liabilities to equity ratio remained constant at .11 to 1. Based on
this financial position, the Company believes it could obtain additional
long-term financing for anticipated growth that may result in working capital
additions that exceed available cash and cash equivalents, cash to be provided
by operations, and funds available under its line of credit. However, there can
be no assurance that the Company will be able to obtain additional sources of
capital during 1997.
RECENTLY ISSUED ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standard No. 128 "Earnings Per Share". This
Statement's objective is to simplify the
31
<PAGE> 32
computation of earnings per share and to make the U.S. standard for computing
earnings per share more comparable to international earnings per share
standards. While management believes that this recently issued standard will
impact the preparation of the consolidated financial statements, the adoption
will not have a material effect on the consolidated financial statements. This
statement is effective for financial statements for periods ending after
December 15, 1997, including interim periods: earlier application is not
permitted. This Statement requires restatement of all prior period earnings
per share data presented.
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
The foregoing Management's Discussion and Analysis and other portions of
this report on Form 10-K, contains various "forward-looking statements" within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Sections 21E of the Securities Exchange Act of 1934, as amended, which
represent the Company's expectations or beliefs concerning future events,
including, without limitation, the following: statements regarding the rate of
future growth and acceptance of gaming in domestic and international markets;
statements regarding the addition, expansion, and completion of new casinos;
legislative rules and regulatory mandates impacting the Company's product
approvals; demand by casinos and acceptance by customers of the Company's
existing and future products; loss of key executives or employees; approval of
pending patent applications or infringement upon existing patents; maintenance
and growth of multi-site progressive operations; changes in interest rates
causing a reduction in investment income and increasing associated costs of the
Company's MSP operations; unfavorable determinations of suitability or
licensing by regulatory agencies; adverse results of significant litigation
matters; successful completion of product development; and successful sales
and distribution of products against competitors who have significantly greater
financial and market strength than the Company.
In addition, statements containing expressions such as "plans",
"believes", "anticipates", or "expects" used in the Company's periodic reports
on Forms 10-K and 10-Q filed with the SEC are intended to identify
forward-looking statements. The Company cautions that these and similar
statements included in this report and in previously filed periodic reports
including reports filed on Form 10-K and Form 10-Q are further qualified by
important factors that could cause actual results to differ materially from
those in the forward-looking statements. Many of the foregoing factors have
been discussed in the Company's prior filings and, had the amendments to the
Securities Act of 1933 and Securities Act of 1934 become effective at a
different time, would have been discussed in a earlier filing.
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<PAGE> 33
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS PAGE
Independent Auditors' Report F-1
Consolidated Balance Sheets as of December 31, 1996 and 1995 F-2
Consolidated Statements of Operations for the years ended
December 31, 1996, 1995 and 1994 F-4
Consolidated Statements of Shareholders' Equity for the years
ended December 31, 1996, 1995 and 1994 F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994 F-7
Notes to Consolidated Financial Statements F-8
FINANCIAL STATEMENT SCHEDULES AND SUPPLEMENTARY DATA
Financial statement schedules and supplementary data have been omitted
since they are either not required, are not applicable, or the required
information is shown in the consolidated financial statements and related
notes.
33
<PAGE> 34
PART III
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not Applicable
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information beginning immediately following the caption "Election of
Directors" to, but not including, the caption "Compensation Committee
Interlocks and Insider Participation" in the Company's 1997 Proxy Statement, to
be filed with the Securities and Exchange Commission within 120 days after the
close of the Company's year ended December 31, 1996 and forwarded to
stockholders prior to the Company's 1997 Annual Meeting of Shareholders (the
"1997 Proxy Statement"), is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information in the 1997 Proxy Statement beginning immediately
following the caption "Executive Compensation" to, but not including, the
caption "Director Compensation," is incorporated by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information in the 1997 Proxy Statement beginning immediately
following the caption "Voting Securities and Principal Holders Thereof" to, but
not including, the caption "Election of Directors," is incorporated by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information in the 1997 Proxy Statement under the caption "Certain
Transactions" is incorporated herein by reference.
34
<PAGE> 35
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Financial Statements:
Reference is made to the Index to Financial Statements and Related
Information under Item 8 in Part II hereof where these documents are
listed.
(a)(2) Consolidated Financial Statement Schedule:
Note Applicable
(a)(3) Exhibits:
3.1 Articles of Incorporation, as amended (incorporated herein by
reference to the Company's Form 10-K for the year ended
December 31, 1994).
3.2 By-laws (incorporated herein by reference to the Company's
registration Statement on Form SB-2 (File No. 33-59148LA)).
10.1 1993 Employee Stock Option and Compensation Plan, as amended
(incorporated herein by reference to the Company's Registration
Statement on Form SB-2 (File No. 33-59148LA)).+
10.2 1994 Non-Employee Director Option Plan (incorporated by reference
to Exhibit A to the Registrant's Proxy Statement dated
June 13, 1995).+
10.3 Employment Agreement dated as of January 27, 1997 between Steven A.
Weiss and Casino Data Systems.*+
10.4 Employment Agreement dated as of January 27, 1997 between Daniel N.
Copp and Casino Data Systems.*+
10.5 Employment Agreement dated as of January 27, 1997 between Diana L.
Bennett and Casino Data Systems.*+
10.6 Cross-License and Development Agreement dated as of February 5, 1996.*
10.7 Letter of Intent Agreement dated November 22, 1996 between Casino
Data Systems and Prolific Publishing, Inc.
21 Subsidiaries of the Registrant.*
23.1 Consent of KPMG Peat Marwick LLP.
27.1 Financial Data Schedule
* Incorporated by reference to the Company's Registration Statement on
Form S-3 (File No. 333-1114)
+ Executive Compensatory Plan or Arrangement
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the fourth quarter of 1996.
35
<PAGE> 36
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
CASINO DATA SYSTEMS
By: /s/ Daniel N. Copp
- ------------------------------------------
Daniel N. Copp
Chief Executive Officer
By: /s/ Diana L. Bennett
- ------------------------------------------
Diana L. Bennett
President and Chief Operating Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
registration statement has been signed by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Steven A. Weiss Chairman of the Board and March 26, 1997
- -------------------- President of Research and
Steven A. Weiss Development Division
/s/ Daniel N. Copp Chief Executive Officer and March 26, 1997
- -------------------- Director
Daniel N. Copp (principal executive officer)
/s/ Diana L. Bennett President, Chief Operating Officer March 26, 1997
- -------------------- and Director
Diana L. Bennett (principal financial officer)
/s/ Russell C. Mix Senior Vice President, March 26, 1997
- -------------------- General Counsel, Secretary
Russell C. Mix and Director
/s/ William M. Mower Director March 26, 1997
- --------------------
William M. Mower
/s/ Phil E. Bryan Director March 26, 1997
- --------------------
Phil E. Bryan
/s/ Ron M. Rowan Corporate Controller
- -------------------- (principal accounting officer) March 28, 1997
Ronald M. Rowan
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<PAGE> 37
INDEPENDENT AUDITORS' REPORT
The Shareholders and Board of Directors
Casino Data Systems:
We have audited the accompanying consolidated balance sheets of Casino Data
Systems and subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of operations, shareholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1996. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Casino Data Systems
and subsidiaries as of December 31, 1996 and 1995, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
/S/ KPMG Peat Marwick LLP
Las Vegas, Nevada
March 24, 1997
F-1
<PAGE> 38
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------------
ASSETS 1996 1995
------------ -----------
<S> <C> <C>
Current assets:
Cash and cash equivalents, including restricted amounts of approximately
$12,000,000 and $6,000,000 in 1996 and 1995, respectively $ 21,482,173 $13,156,998
Investment securities, including restricted amounts of approximately
$444,000 in 1996 844,303 --
Accounts receivable, net of allowance for doubtful accounts of
$2,367,747 and $88,848 in 1996 and 1995, respectively 20,369,624 6,802,151
Due from related party, net of allowance for doubtful accounts of
$500,000 in 1996 2,512,143 1,055,665
Current portion of notes receivable 3,520,542 1,827,878
Income tax receivable 1,288,561 --
Inventories 15,219,571 5,314,410
Deferred tax asset 2,261,877 581,549
Prepaid expenses and other current assets 1,265,601 1,378,790
------------ -----------
Total current assets 68,764,395 30,117,441
Property and equipment, net 35,435,854 21,742,425
Investment securities, including restricted amounts of approximately
$4,474,000 in 1996 5,957,956 --
Notes receivable, excluding current portion 1,280,321 2,114,343
Intangible assets, net 9,539,254 4,667,357
Software development costs, net of accumulated amortization of $54,736 in 1996 2,903,288 641,629
Deposits 425,331 1,023,824
Deferred tax asset 1,115,945 --
------------ -----------
Total assets $125,422,344 $60,307,019
============ ===========
</TABLE>
F-2
<PAGE> 39
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
(CONTINUED)
<TABLE>
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
Current liabilities:
Current portion long-term debt $ 2,032,187 $ 1,282,233
Accounts payable 2,939,888 2,511,556
Accrued expenses and customer deposits 2,691,341 1,804,238
Accrued slot liability 2,874,918 1,383,052
------------ -----------
Total current liabilities 10,538,334 6,981,079
------------ -----------
Noncurrent liabilities:
Long-term debt, excluding current portion 2,450,159 3,021,771
Accrued slot liability 9,257,308 2,161,178
Deferred tax liability -- 75,468
------------ -----------
Total noncurrent liabilities 11,707,467 5,258,417
------------ -----------
Commitments and contingencies
Shareholders' equity:
Common stock, no par value. Authorized 100,000,000 shares; issued and
outstanding 18,033,647 shares in 1996 and 13,737,490 shares in 1995 83,624,448 33,330,010
Retained earnings 19,552,095 14,737,513
------------ -----------
Total shareholders' equity 103,176,543 48,067,523
------------ -----------
Total liabilities and shareholders' equity $125,422,344 $60,307,019
============ ===========
</TABLE>
See accompanying notes to consolidated financial statements
F-3
<PAGE> 40
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------
1996 1995 1994
---------- ----------- -----------
<S> <C> <C> <C>
Revenues:
Systems and product sales $47,167,781 $24,660,377 $26,885,488
Progressive operations 23,703,094 8,233,125 411,587
---------- ----------- -----------
70,870,875 32,893,502 27,297,075
Costs and expenses:
Cost of goods sold 38,619,684 13,626,488 10,364,436
Selling, general and administrative 21,004,297 8,781,040 5,629,005
Provision for doubtful accounts 2,792,747 88,848 --
Research and development 3,113,599 2,883,296 1,733,605
Depreciation and amortization 3,370,430 1,272,839 359,707
---------- ----------- ----------
Total costs and expenses 68,900,757 26,652,511 18,086,753
Income from operations 1,970,118 6,240,991 9,210,322
---------- ----------- ----------
Other income (expense):
Interest and other income 5,558,039 958,368 922,422
Interest expense (481,383) (73,451) (42,589)
---------- ----------- -----------
Total other income (expense) 5,076,656 884,917 879,833
Income before income taxes 7,046,774 7,125,908 10,090,155
Income tax provision 2,232,192 2,394,214 3,555,000
----------- ----------- -----------
Net income $ 4,814,582 $ 4,731,694 $ 6,535,155
=========== =========== ===========
Net income per common share $ 0.28 $ 0.34 $ 0.50
=========== =========== ===========
Shares used in per share calculations 17,485,000 13,876,000 13,114,000
=========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements
F-4
<PAGE> 41
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
<TABLE>
<CAPTION>
COMMON STOCK
---------------------- DEFERRED TREASURY RETAINED
SHARE AMOUNT DISCOUNT STOCK EARNINGS TOTAL
---------- --------- ---------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1993,
as previously reported 10,492,313 5,374,661 $(250,000) $ -- $ 3,470,664 $ 8,595,325
Adjustments for Imageworks,
Inc. pooling of interests 27,000 24,950 -- -- -- 24,950
---------- ---------- --------- ----------- ----------- -----------
Balance at December 31, 1993,
as restated 10,519,313 5,399,611 (250,000) -- 3,470,664 8,620,275
Issuance of common stock 3,114,000 29,944,190 -- -- -- 29,944,190
Issuance of common stock,
pursuant to employee stock
option plan 53,212 152,437 -- -- -- 152,437
Issuance of common stock
pursuant to underwriter's
warrants 219,375 585,000 -- -- -- 585,000
Purchase of treasury stock,
at cost -- -- -- (4,920,574) -- (4,920,574)
Net income -- -- -- -- 6,535,155 6,535,155
Deferred discount, earned and
charged to operations -- -- 224,667 -- -- 224,667
---------- ---------- --------- ----------- ----------- -----------
Balance at December 31, 1994 13,905,900 36,081,238 (25,333) (4,920,574) 10,005,819 41,141,150
Issuance of common stock,
pursuant to employee stock
option plan 236,590 1,162,106 -- -- -- 1,162,106
Income tax benefits derived
from exercise of stock options -- 657,240 -- -- -- 657,240
Issuance of common stock pursuant
to purchase of TurboPower
Software Company 112,500 350,000 -- -- -- 350,000
Retirement of shares held in
treasury (517,500) (4,920,574) -- 4,920,574 --
Net income -- -- -- -- 4,731,694 4,731,694
Installment sale discount,
additional capital -- -- 25,333 -- -- 25,333
---------- ---------- --------- ----------- ----------- -----------
</TABLE>
F-5
<PAGE> 42
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
(CONTINUED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995 13,737,490 33,330,010 -- -- 14,737,513 48,067,523
Issuance of common stock,
pursuant to employee stock
option plan 334,195 1,989,345 -- -- -- 1,989,345
Income tax benefits derived
from exercise of stock options -- 1,347,120 -- -- -- 1,347,120
Issuance of common stock,
pursuant to purchase of
Telnaes patent 166,962 1,733,234 -- -- -- 1,733,234
Issuance of common stock 3,795,000 45,224,739 -- -- -- 45,224,739
Net income -- -- -- -- 4,814,582 4,814,582
---------- ----------- -------- ---------- ----------- ------------
Balance at December 31, 1996 18,033,647 $83,624,448 $ -- $ -- $19,552,095 $103,176,543
========== =========== ======== ========== =========== ============
</TABLE>
See accompanying notes to consolidated financial statements
F-6
<PAGE> 43
CASINO DATA SYSTEMS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------------
1996 1995 1994
------------ ------------ ------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 4,814,582 $ 4,731,694 $ 6,535,155
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation and amortization 3,370,430 1,272,839 359,707
Deferred income taxes (2,871,741) (414,081) (95,000)
Installment sale discount, additional capital -- 25,333 224,667
Tax benefit derived from exercised options by grantees 1,347,120 657,240 --
Provision for accounts receivable 2,792,747 88,848 --
Changes in assets and liabilities:
Increase in accounts and notes receivable (18,675,340) (3,420,942) (6,167,005)
Increase in income tax receivable (1,288,561) -- --
Increase in inventories (9,905,161) (1,072,836) (3,233,155)
Decrease (increase) in prepaid expenses, other current
assets and deposits 711,682 (1,571,502) (743,384)
Increase in accounts payable 428,332 2,680,027 195,095
Increase in accrued expenses, customer deposits and slot
liability 9,475,099 3,316,850 844,040
----------- ----------- -----------
Net cash provided by (used in) operating activities (9,800,811) 6,293,470 (2,079,880)
----------- ----------- -----------
Cash flows from investing activities:
Purchase of securities held to maturity (6,802,259) -- (26,881,879)
Sale and maturities of securities held to maturity -- 5,674,895 22,614,595
Increase in intangible assets (3,658,465) (1,700,810) (299,019)
Investment in software development (2,316,395) (641,629) --
Payment for purchase of CDS Graphics and Imaging Company,
net of cash acquired -- -- (283,770)
Payment for purchase of TurboPower Software Company -- (600,000) --
Payment for purchase of CDS Signs, Inc., net of cash acquired -- (1,349,700) --
Acquisitions of property and equipment (16,489,321) (13,456,517) (8,315,858)
----------- ----------- -----------
Net cash used in investing activities (29,266,440) (12,073,761) (13,165,931)
----------- ----------- -----------
Cash flows from financing activities:
Purchase of treasury stock -- -- (4,920,574)
Principal payments on related party notes payable -- -- (772,500)
Principle payments under capital lease obligations -- -- (104,599)
Borrowings from operating line-of-credit 1,800,000 -- 1,000,000
Principal payments on operating line-of-credit (1,800,000) -- (1,000,000)
Repayment of notes payable (1,900,225) (23,934) --
Proceeds from issuance of note payable 2,078,567 3,716,093 587,911
Net proceeds from issuance of common stock 47,214,084 1,162,106 30,706,577
----------- ----------- -----------
Net cash provided by financing activities 47,392,426 4,854,265 25,496,815
----------- ----------- -----------
Net increase (decrease) in cash and cash equivalents 8,325,175 (926,026) 10,251,004
Cash and cash equivalents at beginning of year 13,156,998 14,083,024 3,832,020
----------- ----------- -----------
Cash and cash equivalents at end of year $21,482,173 $13,156,998 $14,083,024
=========== =========== ===========
</TABLE>
See supplemental information regarding non cash investing and financing
activities included in Note 16 to the consolidated financial statements.
F-7
<PAGE> 44
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996 AND 1995
(1) DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) DESCRIPTION OF BUSINESS
Casino Data Systems, a Nevada corporation, was incorporated in June 1990.
Each of the following corporations are wholly owned subsidiaries of the
Company: CDS Services Company, CDS Graphics and Imaging Company, CDS Signs,
Inc., TurboPower Software Company, and CDS Gaming Company. The Company
currently operates in one line of business whose operations consist
principally of: (i) the development, licensing and sale of casino
management information systems; (ii) the operation of multi-site link
progressive (MSP) systems; (iii) the design and manufacture of video
interactive gaming machines, and (iv) the design and manufacture of casino
meters, signs and graphics. The Company also creates software development
tools for sale to outside software professionals and for use by the
Company's own software engineers. The Company operates solely in the U. S.
CDS Services Company was incorporated in June, 1993 to provide direct sales
and support to customers in certain gaming jurisdictions where
publicly-traded corporations must conduct business through a subsidiary.
In January 1994, the Company acquired 100% of the outstanding common stock
of CDS Graphics and Imaging Company (formerly known as Paradise Graphics,
Inc.) for a purchase price of $427,500 in cash ($283, 770 net of cash
acquired) and a $772,500 note payable. The note was paid in full in June
1994. The acquisition was accounted for by the purchase method of
accounting. The excess of the purchase price over net assets acquired
(goodwill) totaled $909,391 and is being amortized using the straight-line
method over 15 years. CDS Graphics and Imaging Company produces flat-glass
and slot reel graphics for gaming machine manufacturers and manufacturers
of coin operated equipment.
CDS Gaming Company was incorporated in March 1994 to develop and operate
computerized multi-site linked progressive systems. The Company derives
revenues from the operations of these systems.
In January 1995, the Company purchased substantially all of the assets of
TurboPower Software, a Colorado sole proprietorship for a purchase price of
$600,000 in cash and 112,500 restricted shares of the Company's common
stock valued at $3.11 per share. The acquisition was accounted for under
the purchase method. The excess of the purchase price over net assets
acquired (goodwill) totaled $815,000 and is being amortized using the
straight-line method over 15 years. TurboPower Software designs, develops,
and markets programming tools to professionals.
In September 1995, the Company purchased 100% of the outstanding voting
stock of CDS Signs, Inc. (formerly known as Fifty-Seven Corporation) for a
purchase price of $1,350,000 in cash. The acquisition was accounted for
under the purchase method. The excess of the purchase price over net
assets acquired (goodwill) totaled $1,340,998 and is being amortized using
the straight-line
F-8
<PAGE> 45
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
method over 15 years. CDS Signs, Inc. designs and manufacturers both indoor
and outdoor signage, primarily for casinos.
In April 1996, CDS Graphics and Imaging Company acquired 100% of the outstanding
common stock of Imageworks, Inc. for 27,000 restricted shares of the Company's
common stock. The acquisition was accounted for as a pooling of interests
combination, and accordingly, the consolidated financial statements for periods
prior to the combination have been restated to include the results of operations
of Imageworks, Inc.
The results of operations previously reported by the separate enterprises and
the combined amounts presented in the accompanying consolidated financial
statements are summarized below:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1995 1994
----------- ------------
<S> <C> <C>
REVENUES:
Casino Data Systems and Subsidiaries $31,583,986 $27,046,944
Imageworks, Inc. 1,309,516 250,131
----------- -----------
Combined $32,893,502 $27,297,075
=========== ===========
NET INCOME (LOSS):
Casino Data Systems and Subsidiaries $ 4,728,084 $ 6,676,400
Imageworks, Inc. 3,610 (141,245)
----------- -----------
Combined $ 4,731,694 $ 6,535,155
=========== ===========
</TABLE>
Net income per share amounts have not been presented as the effect is not
considered material.
(B) CONSOLIDATION POLICY AND BASIS OF PRESENTATION
The consolidated financial statements include the accounts of Casino Data
Systems, CDS Services Company, CDS Graphics and Imaging Company, Inc., CDS
Signs, Inc., TurboPower Software Company, and CDS Gaming Company (collectively
the "Company"). All significant inter-company balances and transactions have
been eliminated in consolidation.
F-9
<PAGE> 46
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(C) REVENUE RECOGNITION
The Company sells Oasis II systems, meters, and graphics sales on normal credit
terms (90 days or less) and installment contracts (generally, less than one
year). Revenue from Oasis II system sales is recorded in proportion to work
completed using a method that approximates the percentage-of-completion method,
or if the contract does not provide for the Company's installation of the
system, the sale is recorded upon shipment. Contracts for Oasis II system
sales generally specify that the price is to be paid in three or four
installments as progress is made toward completion and that final payment under
the contract is not made until the expiration of an acceptance period during
which time the customer and applicable regulatory authorities may test and
approve the Company's Oasis II system. CDS Gaming Company's revenues relate to
the operation of the multi-site linked progressive systems, a share of the coins
wagered on machines at customer locations and sale of video interactive gaming
machines (games). Revenue from game sales is recorded upon shipment.
(D) CASH AND CASH EQUIVALENTS
Cash equivalents consist of money market funds, auction market preferred
stock, and short term securities with original maturities of less than 90 days.
These investments are stated at cost, which approximates fair value.
(E) INVESTMENT SECURITIES
The Company classifies its debt and equity securities in one of three
categories: trading, available-for-sale, or held-to-maturity. Trading
securities are bought and held principally for the purpose of selling them in
the near term. Held-to-maturity securities are those securities in which
the Company has the ability and intent to hold the security until maturity. All
other securities not included in trading or held-to-maturity are classified as
available-for sale.
Trading and available-for-sale securities are recorded at fair value.
Held-to-maturity securities are recorded at amortized cost, adjusted for
the amortization or accretion of premiums or discounts. Unrealized holding
gains and losses, net of the related tax effect, on available-for-sale
securities are excluded from earnings and are reported as a separate component
of shareholders' equity until realized. Realized gains and losses from the sale
of available-for-sale securities are determined on a specific identification
basis.
A decline in the market value of any available-for-sale or held-to-maturity
security below cost that is deemed to be other than temporary results in a
reduction in carrying amount to fair value. The impairment is charged to
earnings and a new cost basis for the security is established. Premiums and
discounts are amortized or accreted over the life of the related
held-to-maturity security as an adjustment to yield using the effective interest
method. Dividend and interest income are recognized when earned.
(F) INVENTORIES
Inventories are recorded at the lower of cost or market. Cost is determined
principally on the first-in first-out method. Inventories consist of computer
components and other hardware used in
F-10
<PAGE> 47
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
Oasis II casino information management systems, slot machines, poker machines
and raw materials used in meters, signs, and graphics production.
(G) PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is calculated using
the straight-line method over the following estimated useful lives:
Building - 40 years
Furniture, fixtures and equipment - 3 to 10 years
Gaming devices - 3 to 7 years
Service vehicles - 5 to 7 years
Leasehold improvements are amortized over the shorter of the lease term
(including expected renewals) or the useful life of the assets.
Normal repairs and maintenance are charged to expense when incurred.
Betterments and expenditures which materially extend the useful life of the
asset are capitalized.
(H) INTANGIBLE ASSETS
Intangible assets consist of costs associated with the establishment of
trademarks, purchase of a patent license, gaming licenses in various
jurisdictions, the excess of the purchase price over the net assets of an
acquired businesses (goodwill), and the purchase price of a technology release
agreement, all of which are capitalized and amortized using the straight-line or
revenue matching method over a period of 5 to 15 years.
During 1996, the Company capitalized $4,932,646 in costs associated with
the acquisition of a Telnaes patent license. The Company paid approximately
$3,199,412 in cash and issued approximately 166,962 shares of restricted stock
valued at $1,733,234.
(I) SOFTWARE DEVELOPMENT COSTS
The Company capitalizes software development costs when technological
feasibility is established and ceases when the product is ready for release.
Software development costs are amortized over the greater of the ratio that
current gross revenues for a product bear to the total of current and
anticipated future gross revenues for that product or the straight line method
over the remaining estimated economic life of the product including the current
period reported on. Amortization of software development costs begins when the
products are ready for general release.
The Company capitalized $2,316,395 and $641,629 of software development costs
for the years ended December 31, 1996 and 1995, respectively. During 1996,
the Company amortized approximately $54,736. Research and development costs
incurred to establish technological feasibility have been expensed when
incurred.
(J) RESEARCH AND DEVELOPMENT COSTS
Research and development costs related to designing, developing and testing
products are charged to expense as incurred. Certain costs related to specific
contract engineering are included in research and development because these
costs cannot be identified with individual contracts or
F-11
<PAGE> 48
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
accounts. The Company accounts for research and development tax credits as
a reduction of the provision for income taxes in the year in which the credits
are realized.
(K) INCOME TAXES
Income taxes are accounted for under the asset and liability method. Deferred
tax assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases and operating
loss and tax credit carryforwards. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable income in the
years in which those temporary differences are expected to be recovered or
settled. The effect on deferred tax assets and liabilities of a change in tax
rates is recognized in income in the period that includes the enactment date.
(L) SLOT LIABILITY
In connection with the operation of its MSP Systems, the Company is liable for
progressive jackpots, which are paid as an initial amount followed by an annuity
paid out over 20 years after the winning combination is hit. Base jackpots are
charged to revenue ratably over the period of play expected to precede payout
based on a statistical analysis. The incremental component increases based on
the number of coins played. The accrual of the liability and the reduction of
revenue as the amount of the jackpot increases results in recognition of
liabilities and matching costs and revenues. The possibility exists that the
winning combination may be hit before the Company has accrued the initial
reset amount, at which time the unaccrued portion would be charged against
revenue.
(M) WARRANTY COSTS
The Company warrants its products for a period ranging from three months to one
year from the date of delivery, provided the products are used under normal
operating conditions. The Company accrues a reserve for product warranty at the
time of sale.
(N) NET INCOME PER COMMON SHARE
Net income per common share is based on the weighted average number of common
shares outstanding during each period, after retroactive adjustments for stock
splits, and after giving effect to stock options considered to be dilutive
common stock equivalents using the treasury stock method. Fully diluted net
income per common share is not materially different from primary net income per
common share.
All share and per share data presented in the consolidated financial statements
and notes thereto have been retroactively restated to give effect to stock
splits.
F-12
<PAGE> 49
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(O) STOCK OPTION PLAN
Prior to January 1, 1996, the Company accounted for its stock option plan in
accordance with the provisions of Accounting Principles Board ("APB") Opinion
No. 25, Accounting for Stock Issued to Employees, and related interpretations.
As such, compensation expense would be recorded on the date of grant only if
the current market price of the underlying stock exceeded the exercise price.
On January 1, 1996, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 123, Accounting for Stock-Based Compensation, which
permits entities to recognize as expense over the vesting period the fair value
of all stock-based awards on the date of grant. Alternatively, SFAS No. 123
also allows entities to continue to apply the provisions of APB Opinion No. 25
and provide pro forma net income and pro forma earnings per share disclosures
for employee stock option grants made in 1995 and future years as if the fair-
value-based method defined in SFAS No. 123 had been applied. The Company has
elected to continue to apply the provisions of APB Opinion No. 25 and provide
the pro forma disclosure provisions of SFAS No. 123.
(P) IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceed the fair value of the assets. Assets to be disposed
of are reported at the lower of the carrying amount or fair value less costs to
sell. Adoption of this Statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
The Company assesses the recoverability of intangible assets by determining
whether the amortization of the balance over its remaining life can be recovered
through undiscounted future cash flows. The amount of impairment, if any, is
measured based on projected discounted future cash flows using a discount rate
reflecting the Company's average cost of funds. The assessment of the
recoverability of intangible assets will be impacted if estimated future
operating cash flows are not achieved.
(Q) USE OF ESTIMATES
Management of the Company has made a number of estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure of
contingent assets and liabilities to prepare these consolidated financial
statements in conformity with generally accepted accounting principles. Actual
amounts could differ from these estimates.
(R) RECLASSIFICATIONS
Certain prior year balances have been reclassified to conform to the current
year presentation.
F-13
<PAGE> 50
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(2) INVESTMENT SECURITIES
The amortized cost, gross unrealized holding gains, and fair value for
held-to-maturity securities by major security type and class of security at
December 31, 1996 follows:
<TABLE>
<CAPTION>
AMORTIZED UNREALIZED FAIR
COST GAINS VALUE
---------- ---------- ----------
<S> <C> <C> <C>
Securities to be held to maturity:
U.S. Government and agency securities $4,918,075 $114,423 $5,032,498
State and municipal securities 1,884,184 732 1,884,916
---------- -------- ----------
$6,802,259 $115,155 $6,917,414
========== ======== ==========
</TABLE>
The approximate market values of securities held to maturity at
December 31, 1996; by contractual maturity, are as follows:
<TABLE>
<CAPTION>
FAIR VALUE
----------
<S> <C>
Due in one year or less $ 848,878
Due in one to five years 3,028,922
Due in five to ten years 1,439,491
Due in ten to fifteen years 1,014,713
Due in fifteen to twenty years 585,410
----------
$6,917,414
==========
</TABLE>
(3) NOTES RECEIVABLE
The Company has granted customers extended payment terms under contracts of sale
evidenced by notes. These notes are generally for terms of one to two years,
with interest recognized at prevailing rates, and are secured by the related
equipment sold. The Company also sells Oasis II Systems through a related
party primarily to Native American Casinos in the Midwest, and generally offers
the related party extended payment terms that match the term of the sale to the
Tribe. Notes receivable from the related party are unsecured. See Note 10,
Related Party Transaction.
F-14
<PAGE> 51
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(4) INVENTORIES
Inventories consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1996 1995
----------- ----------
<S> <C> <C>
Raw Materials $ 9,943,220 $4,246,502
Work in process 663,340 110,000
Finished Goods 4,613,011 957,908
----------- ----------
$15,219,571 $5,314,410
=========== ==========
</TABLE>
(5) PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1996 1995
----------- ----------
<S> <C> <C>
Furniture, fixtures and equipment $11,182,807 $ 6,057,891
Gaming devices 15,708,564 7,693,119
Service vehicles 548,232 209,671
Leasehold improvements 913,465 338,426
Buildings 9,594,540 7,496,553
Land 1,815,721 1,478,348
----------- -----------
39,763,329 23,274,008
Less accumulated depreciation and
amortization (4,327,475) (1,531,583)
----------- -----------
$35,435,854 $21,742,425
=========== ===========
</TABLE>
The net book value of collateral for equipment financing agreements was
approximately $4,298,000 and approximately $3,934,000 at December 31, 1996
and 1995, respectively.
F-15
<PAGE> 52
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(6) INTANGIBLE ASSETS
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1996 1995
------------ -----------
<S> <C> <C>
Trademarks $ 31,200 $ 31,200
Licensing costs 919,596 460,543
Goodwill resulting from acquisitions 3,065,389 3,065,389
Technology release agreement 1,437,500 1,437,500
Telnaes patent 4,932,646 --
----------- ----------
10,386,331 4,994,632
Less accumulated amortization (847,077) (327,275)
----------- ----------
$ 9,539,254 $4,667,357
=========== ==========
</TABLE>
(7) LONG TERM DEBT
Long term debt at December 31, 1996 and 1995 consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1996 1995
---------- ----------
<S> <C> <C>
9.0% note payable due in monthly installments of $42,790,
including interest, with final payment of $43, 235 due
February 28, 1999; secured by personal property $1,007,754 $ --
9.15% note payable due in monthly installments of $115,250,
including interest, with final payment due December 29,
1998; secured by personal property 2,518,936 3,616,311
8.75% note payable due in monthly installments of $23,221,
including interest, with final payment due March 13, 1999;
secured by personal property 567,249 --
11.12% note payable due in monthly installments of $9,245,
including interest, with final payment due January 1, 2000;
secured by personal property 288,504 362,831
Other unsecured notes payable 99,903 324,862
---------- ----------
Total 4,482,346 4,304,004
Less current portion 2,032,187 1,282,233
---------- ----------
Long term portion $2,450,159 $3,021,771
========== ==========
</TABLE>
F-16
<PAGE> 53
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
Future minimum payments under equipment financing agreements are as
follows:
<TABLE>
<CAPTION>
PAYMENTS
------------
<S> <C>
Year ending December 31:
1997 $ 2,362,777
1998 2,315,798
1999 267,173
2000 9,245
------------
Total minimum payments 4,954,993
Less interest (472,647)
------------
Present value of future minimum payments 4,482,346
Less current portion (2,032,187)
------------
$ 2,450,159
============
</TABLE>
During May 1996, the Company entered into a $20,000,000 revolving line of
credit ("line of credit") with U.S. Bank of Nevada which expires in May
1997. The line of credit is secured by the Company's accounts receivable,
inventory and general intangibles. The line of credit bears interest at a
variable rate equal to the bank's base rate, which was 8.25% on December
31, 1996. There were no amounts outstanding under the line of credit at
December 31, 1996. Advances under the line are limited to a multiple of
the Company's earnings before interest taxes, depreciation, and
amortization over the past four quarters and are also subject to
maintenance of certain financial covenants and ratios. The Company has
reserved $5 million of this line of credit to secure an irrevocable
letter of credit pursuant to equipment financing agreements. These
equipment agreements are collateralized by the related equipment and
contain certain restrictive covenants, including the requirement for a
three year letter of credit securing payment in the amount of 50% of the
outstanding principal balance.
(8) SHAREHOLDERS' EQUITY
(A) GENERAL
In December 1992, the Company entered into a long-term sales agreement with
Grand Casinos, Inc. ("Grand Casinos") whereby Grand Casinos agreed to
purchase up to four slot machine accounting and player tracking systems
during the next four years. Contemporaneous with the sales agreement, the
Company issued 675,000 shares of common stock to Grand Casinos at a price
of $.00004 per share. The stock was issued in lieu of a volume discount on
the system sales agreement, estimated by the Company to be a total discount
of $525,000. This discount was recorded as a contra-equity account and is
recognized into income in proportion to sales completed under the
agreement.
The Company recognized sales of $240,000 and $1,690,000 of systems during
the years ended December 31, 1995 and 1994, respectively, under its
agreement with Grand Casinos, or
F-17
<PAGE> 54
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
approximately 6% and 43%, respectively, of the total agreement.
Accordingly, the deferred discount and net revenues were reduced
proportionately by $25,333 and $224,667 for the years ended December 31,
1995 and 1994, respectively.
Pursuant to an agreement with Grand Casinos (the "Repurchase Agreement"),
on January 1, 1994, the Company redeemed 517,500 shares of Common Stock
beneficially owned by Grand Casinos, which represented approximately
one-half of the shares of the Company's Common Stock beneficially owned by
Grand Casinos, for a total purchase price of $4,920,574. Subsequently, the
Company retired such shares in December 1995.
Pursuant to the TurboPower Software purchase agreement, on January 18,
1995, the Company issued 112,500 shares of restricted stock with an
estimated value of $3.11 per share.
On April 15, 1995 the Board of Directors approved an increase in the
authorized common stock in the Company from 10,000,000 shares to
100,000,000 shares of no par value common stock.
Pursuant to the purchase of the Telnaes patent license on February 19,
1996, the Company issued 121,847 shares of restricted stock with an
estimated value of $10.83 per share. On April 22, 1996, the Company
issued an additional 4,615 shares of restricted stock with an estimated
value of $10.83 per share. On August 6, 1996, the Company issued a final
installment 40,500 shares of restricted stock with an estimated value of
$8.97 per share.
Pursuant to the Imageworks, Inc. agreement, on July 15, 1996, the Company
issued 27,000 shares of restricted stock in exchange for 100% of the
outstanding common stock of Imageworks, Inc.
In March 1996, the Company issued 3,795,000 shares of common stock in a
Secondary Public Offering at $12.75 per share.
(B) STOCK SPLITS
On September 8, 1995, the Company's Board of Directors authorized a
three-for-two stock split, effected in the form a stock dividend to be
distributed on October 11, 1995, to shareholders of record on September 25,
1995.
On January 31, 1996, the Company's Board of Directors authorized a
three-for-two stock split, effected in the form a stock dividend to be
distributed on February 27, 1996, to shareholders of record on February 20,
1996.
All share and per share data presented have been retroactively restated to
give effect to these stock splits.
(C) STOCK OPTION AND COMPENSATION PLAN
In January 1993, the Company adopted the 1993 Stock Option and Compensation
Plan (the Plan), pursuant to which options and other awards to acquire an
aggregate of 1,012,500 shares of Common Stock may be granted. The number
of shares issuable under the Plan was increased to an aggregate 1,350,000
shares in June 1994 and 2,025,000 shares in July 1995. Stock options,
stock appreciation rights, restricted stock, deferred stock and other
stock-based awards and cash awards may be granted under the Plan.
F-18
<PAGE> 55
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
The Plan is administered by the Stock Option Committee, which is comprised
of two of the Company's outside directors. Awards under the Plan may be
made to Company employees, including directors and officers of and
consultants to the Company, its subsidiaries and affiliates. The Plan
confers on the Stock Option Committee discretion to determine the number
and exercise price of the stock options, which may be below the fair market
of the Common Stock on the date granted, the term of each option, and the
time or times during the option period when the option becomes exercisable.
The grant price has been equal to the fair market value of the Company's
common stock on the date of grant for all options granted.
In April 1993, the Company filed a registration statement on Form S-8 with
the Securities and Exchange Commission to register 1,102,500 shares of its
Common Stock consisting of 1,012,500 shares reserved for issuance under the
Plan and 90,000 shares reserved for options granted to two outside directors
of the Company. An S-8 covering the additional 337,500 shares issuable
under the Plan as amended was filed in September 1994. In December 1994,
the Company granted options to purchase an aggregate 22,500 shares to two
outside directors. In September 1995, a Form S-8 was filed covering 225,000
shares issuable under the Company's 1994 Nonemployee Director Stock Option
Plan. The following table provides additional information regarding stock
options:
<TABLE>
<CAPTION>
OPTIONS RANGE
---------- ---------------
<S> <C> <C>
Outstanding at December 31, 1993 466,875 $ 1.33 - 7.33
Granted 605,250 6.11 - 11.78
Exercised (53,212) 1.33 - 6.11
Canceled (84,376) 1.33 - 6.11
---------
Outstanding at December 31, 1994 934,537 1.33 - 11.78
Granted 851,348 5.28 - 12.33
Exercised (236,590) 1.33 - 6.11
Canceled (349,875) 5.33 - 7.33
---------
Outstanding at December 31, 1995 1,199,420 1.33 - 12.33
Granted 793,474 11.50 - 20.08
Exercised (334,195) 2.22 - 12.33
Canceled (339,049) 5.33 - 16.00
Outstanding at December 31, 1996 1,319,650 $ 1.33 - 20.08
========= ==============
Exercisable at December 31, 1996 422,293
=========
</TABLE>
F-19
<PAGE> 56
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
The per share weighted-average fair value of stock options granted during 1996
and 1995 was $2.12 and $.69, respectively, on the date of grant using the
Black Scholes option-pricing model with the following weighted-average
assumptions for 1996 and 1995: expected dividend yield of 0%, risk free interest
rate of 6.5%, and expected lives varying from one month to three years.
The Company applies APB Opinion No. 25 in accounting for its Plan and,
accordingly, no compensation cost has been recognized for its stock options
in the financial statements. Had the Company determined compensation cost based
on the fair value at the grant date for its stock options under SFAS No. 123,
the Company's net income would have been reduced to the pro forma amounts
indicated below:
<TABLE>
<CAPTION>
1996 1995
---------- ----------
<S> <C> <C> <C>
Net income As reported $4,814,582 $4,731,694
Pro forma $3,699,727 $4,429,285
</TABLE>
Pro forma net income reflects only options granted in 1996 and 1995. Therefore,
the full impact of calculating compensation cost for stock options under SFAS
No. 123 is not reflected in the pro forma net income amounts presented above
because compensation cost is reflected over the options' vesting period of three
years and compensation cost for options granted prior to January 1, 1995 is not
considered.
(D) NET INCOME PER COMMON SHARE
The following is an analysis of the components of the shares used to compute
net income per common share:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------
1996 1995 1994
---------- ---------- ----------
<S> <C> <C> <C>
Weighted average shares outstanding 16,892,000 13,572,000 12,860,000
Weighted average shares outstanding related
to the shares granted under the employee
stock option plan 593,000 304,000 254,000
---------- ---------- ----------
17,485,000 13,876,000 13,114,000
========== ========== ==========
</TABLE>
F-20
<PAGE> 57
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(9) INCOME TAXES
Total income tax expense for the years ended December 31, 1996, 1995 and
1994, was allocated as follows:
<TABLE>
<CAPTION>
1996 1995 1994
----------- ---------- ----------
<S> <C> <C> <C>
Tax expense on income from
continuing operations $2,232,192 $2,394,214 $3,555,000
Shareholder's equity, income tax
benefits derived from exercise of
stock options (1,347,120) (657,240) --
----------- ---------- ----------
$ 885,072 $1,736,974 $3,555,000
========== ========== ==========
</TABLE>
Income tax expense attributable to income from continuing operations consists
of:
<TABLE>
<CAPTION>
CURRENT DEFERRED TOTAL
---------- ------------ ----------
<S> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1996:
U.S. Federal $4,869,334 $(2,871,741) $1,997,593
State 234,599 -- 234,599
---------- ----------- ----------
$5,103,933 $(2,871,741) $2,232,192
========== =========== ==========
YEAR ENDED DECEMBER 31, 1995:
U.S. Federal $2,773,295 $ (414,081) $2,359,214
State 35,000 -- 35,000
---------- ----------- ----------
$2,808,295 $ (414,081) $2,394,214
========== =========== ==========
YEAR ENDED DECEMBER 31, 1994:
U.S. Federal $3,550,000 $ (95,000) $3,455,000
State 100,000 -- 100,000
---------- ----------- ----------
$3,650,000 $ (95,000) $3,555,000
========== =========== ==========
</TABLE>
The effective income tax rate differs from the U.S. federal statutory rate
of 35% for the year ended December 31, 1996 and 34% for the years ended
December 31, 1995 and 1994, respectively, as follows:
<TABLE>
<CAPTION>
1996 1995 1994
----------- ----------- -----------
<S> <C> <C> <C>
Computed "expected" income
tax expense $2,466,371 $ 2,422,809 $3,431,000
Tax exempt interest income (366,115) (119,000) (244,000)
State taxes, net of federal
income tax benefit 152,489 23,100 66,000
Research and development
tax credit -- (165,000) (96,000)
Other, net (20,553) 232,305 398,000
---------- ----------- ----------
$2,232,192 $ 2,394,214 $3,555,000
========== =========== ==========
</TABLE>
F-21
<PAGE> 58
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
The tax effects of temporary differences that give rise to significant portions
of the deferred tax assets and liabilities at December 31, 1996 and 1995 are as
follows:
<TABLE>
<CAPTION>
CHANGE IN
DEFERRED
1996 TAXES 1995
---------- ---------- ----------
<S> <C> <C> <C>
Deferred tax assets:
Accrued jackpot liability $4,234,495 $3,029,457 $1,205,038
Accrued expenses not currently
deductible for income tax purposes 57,429 19,062 38,367
Accounts receivable, principally due
to allowance for doubtful accounts 1,003,711 978,211 25,500
Prepaid expenses -- (25,053) 25,053
Intangible assets 148,537 108,400 40,137
Inventory 273,850 247,939 25,911
---------- ---------- ----------
Total gross deferred tax assets 5,718,022 4,358,016 1,360,006
---------- ---------- ----------
Deferred tax liabilities:
Property and equipment, principally
due to depreciation methods 1,689,865 839,460 850,405
Software development deducted for
income tax purposes 574,488 574,488 --
Deferred rent and prepaid expenses 75,847 72,327 3,520
---------- ---------- ----------
Total gross deferred tax liabilities 2,340,200 1,486,275 853,925
---------- ---------- ----------
Net deferred tax asset $3,377,822 $2,871,741 $ 506,081
========== ========== ==========
</TABLE>
Management has considered certain tax planning strategies as permitted by
SFAS No. 109. Management has determined, based on the Company's history of
prior operating earnings and its expectations for the future, that
operating income of the Company will more likely than not be sufficient to
recognize fully these net deferred tax assets. However, there can be no
assurance, that the Company will generate future earnings.
(10) RELATED PARTY TRANSACTIONS
A shareholder and former director of the Company is a majority shareholder
in Kiland Distributing Corporation ("KDC"), a distributor of the Company's
Oasis II products, primarily to Native American casinos. The Company made
sales of Oasis II systems to KDC of approximately $2,408,132, $1,864,379,
and $47,226 during the years ended December 31, 1996, 1995, and 1994,
respectively. The sales, recorded net of distributor discounts, represent
approximately 3%, 5%, and 1% of the Company's total revenues for the years
ended December 31, 1996, 1995, and 1994, respectively. During 1995, the
Company loaned KDC $120,000, evidenced by a note bearing interest at a
commercial bank's base rate plus 25 basis points, which was paid in full in
September, 1996.
F-22
<PAGE> 59
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
The Company entered into an agreement with Best Bet Products (Best Bet),
of which an employee is a major shareholder, for the distribution of
certain gaming devices. In addition, the Company loaned Best Bet
$100,000, evidenced by a note bearing interest at the prime rate plus
1.5%, which approximated 9.75% at December 31, 1996. The note matures
April 1, 1997.
A director of the Company is associated with a law firm that has rendered
various legal services to the Company. The Company paid the firm
approximately $326,342, $35,957, and $179,000 during the years ended
December 31, 1996, 1995, and 1994, respectively.
(11) OPERATING LEASES
The Company has several non-cancelable operating leases, primarily for
office and warehouse space, that expire over the next five years. Rent
expense under operating leases was $862,822, $519,276, and $211,120 for the
years ended December 31, 1996, 1995 and 1994, respectively.
Future minimum lease payments and receipts under non-cancelable operating
leases and subleases of the building (with initial or remaining lease terms
in excess of one year) as of December 31, 1996 are as follows:
<TABLE>
<CAPTION>
PAYMENTS RECEIPTS
---------- --------
<S> <C> <C>
Year ending December 31:
1997 $ 667,014 $291,061
1998 504,159 40,130
1999 429,744 --
2000 289,218 --
2001 80,939 --
---------- --------
Total minimum lease payments $1,971,074 $331,191
========== ========
</TABLE>
(12) EMPLOYEE BENEFIT PLAN
Effective January 1, 1996, the Company adopted a 401(k) Plan (Plan)
qualified under Section 401 of the Internal Revenue Code of 1986. Eligible
employees of the Company who have satisfied the Plan's eligibility
requirements may participate in the Plan. Eligible employees may elect to
reduce their compensation up to 15% of such compensation up to a maximum
$9,500 in 1996. The Company may elect to make profit sharing contributions
to the Plan. During 1996, the Company did not elect to make a
contribution to the Plan.
F-23
<PAGE> 60
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(13) FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Standards No. 107, Disclosures About Fair Value of
Financial Instruments (SFAS No. 107), requires disclosure of the fair value
of financial instruments for which it is practicable to estimate that
value. SFAS No. 107 specifically excludes certain items from its
disclosure requirements. The fair value of a financial instrument is the
amount at which the instrument could be exchanged in a current transaction
between willing parties, other than in a forced sale or liquidation. The
carrying amounts of cash and cash equivalents, accounts receivable, notes
receivable, other payables and accrued expenses and long-term debt
approximates fair value because of the short maturity of these instruments
or current discount rates are comparable with stated interest rates.
(14) SALES TO PRINCIPAL CUSTOMERS
Sales to principal customers as a percentage of total revenues for the
years ended December 31, 1996, 1995, and 1994, are as follows:
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Circus Circus Enterprises 5% 3% 4%
Boyd Gaming - 8 18
Grand Casinos 13 6 11
Stations Casinos 6 16 -
Kiland Distributing Corporation 3 5 1
Mirage Resorts Inc. 6 - -
Foxwoods - 1 12
Other 67 61 54
--- --- ---
100% 100% 100%
=== === ===
</TABLE>
F-24
<PAGE> 61
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
(15) COMMITMENTS AND CONTINGENCIES
In connection with the operation of its MSP Systems, the Company is liable
for progressive jackpots, which are paid as an initial reset amount
followed by an annuity paid out over 20 years when the winning combination
is hit. Base jackpots are charged to revenue ratably over the period of
play expected to precede payout based on a statistical analysis. The
progressive component increases at a progressive rate based on the number
of coins played. The accrual of the liability and the reduction of revenue
as the amount of the jackpot increases results in recognition of
liabilities and matching costs and revenues. The possibility exists that
the winning combination may be hit before the Company has accrued the
initial reset amount, at which time the unaccrued portion would be
expensed. The unaccrued slot liability at December 31, 1996 and 1995 was
approximately $2,300,000 and $990,000, respectively. In connection with
the accrued slot liability and in accordance with gaming requirements, the
Company has established segregated cash accounts aggregating approximately
$12,000,000 and $6,000,000 at December 31, 1996 and 1995, respectively, to
ensure adequate funds are available to pay this liability. The Company
also has approximately $5,000,000 segregated for the payment of jackpots
already won.
The Company has purchase agreements with various suppliers of electronic
components. Subject to the supplier's quality and performance, the
purchases covered by these agreements approximate $770,000 at December 31,
1996, all of which will be filled in the current period.
On February 5, 1996, the Company entered into a five-year cross-license and
development agreement to use certain intellectual property rights to
develop and manufacture certain gaming machines and to operate MSP systems
with such gaming machines in certain jurisdictions. The agreement provides
for the Company to pay royalties, or, at the licensor's option upon its
receipt of certain gaming licenses, a one-half share of the Company's net
income from such operations. The agreement also provides for the formation
of a joint venture to distribute the gaming machines and operate MSP
systems with such gaming machines in certain other jurisdictions. The
joint venture, if established, would have the right to acquire certain of
the Company's operations relating to such gaming machines upon its receipt
of certain gaming licenses.
In November 1996, the Company entered into an agreement with a third party
requiring that the Company pay $330,000 in monthly installments through
March 1998 in exchange for the enhancement of certain aesthetic qualities
of existing and future products.
In January 1997, a class action complaint was filed against the Company and
certain Company executives on behalf of any party, unrelated to the
Company, who purchased the Company's common stock during the time period
from August 1 1996 through December 16, 1996 (the Class Period). The
complaint alleges that the market price of the Company's common stock was
artificially inflated during the Class Period due to material
misrepresentations and omissions in press releases and other statements
made by the Company's executives to the investing public. Management
believes this claim to be without merit and intends to vigorously defend
this action.
F-25
<PAGE> 62
CASINO DATA SYSTEMS AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
While the outcome of the matter described above is not presently
determinable, management does not expect that the outcome will have a
material adverse effect on the Company's results of operations, financial
position or cash flows.
The Company and its subsidiaries are also involved from time to time in
various claims and legal actions arising in the ordinary course of business
including, but not limited to, claims brought by patrons of the Company's
MSP games wherein the patron may allege the winning of jackpot awards or
some multiple thereof. Management believes that the likelihood of success
by those making such claims are remote and that the ultimate outcome of
these matters will not have a material adverse effect on the Company's
consolidated financial statements taken as a whole.
(16) SUPPLEMENTAL FINANCIAL INFORMATION
(A) CASH FLOW INFORMATION
During the year ended December 31, 1996, the Company issued approximately
166,962 shares of restricted stock valued at $1,733,234 pursuant to
the purchase of Telnaes patent.
Payments for interest expense for the years ended December 31, 1996, 1995
and 1994 were approximately $481,383, $73,451, and $42,589, respectively.
Payments for income taxes for the years ended December 31, 1996, 1995 and
1994 were approximately $5,039,195, $1,792,014, and $3,439,000,
respectively.
(B) OTHER INCOME
During 1996, the Company and International Game Technology (IGT) entered
into a multi-faceted agreement which included a substantial one-time cash
payment by IGT to the Company, which is reflected in other income.
(17) FOURTH QUARTER CHARGES
During the fouth quarter in 1996, the Company recorded a charge of
approximately $2,700,000 in the allowance for doubtful accounts, of which
$1,300,000 related to one customer, and a $1,800,000 charge primarily
related to inventory obsolescence and shrinkage, which is included in the
cost of sales in the accompanying consolidated statement of operations.
F-26
<PAGE> 1
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 27th day of January, 1997, by and between Casino Data Systems, a
Nevada corporation ("CDS") and Steven A. Weiss ("Employee"). For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CDS and Employee hereby agree as follows:
1. EMPLOYMENT; SERVICES.
1.1 CDS hereby hires and employs Employee and Employee hereby
accepts such hiring and employment for the position of
Chairman of the Board of Directors (the "Board") and for the
purpose of performing those services (the "Services") which
are usual and customary for a Chairman of the Board of
Directors. Employee shall use diligent efforts and shall
devote such time and energies as may be reasonably required to
perform the Services to the best of his ability.
1.2 During the term of this Agreement, Employee shall not (i) work
as an employee of or independent consultant or contractor for,
or provide any other services for hire or benefit to, any
third party that competes with CDS or its related entities, or
(ii) engage in any activity that in any way competes with the
interests of CDS, whether Employee is acting by himself or as
an officer, director, shareholder, partner, fiduciary, or
otherwise, unless Employee shall first receive the written
consent of a majority of the Board.
1.3 Employee shall report only to the Board. The Board shall at
all times during the term of this Agreement have final and
complete authority over Employee with respect to all decisions
related to the Services and the direction and control of
Employee. In all such cases, the Board shall act by majority
vote. In every case under this Agreement where a vote of the
Board is required, such vote shall not include Employee's vote
at any time that Employee is a member of the Board.
2. TERM.
2.1 The term of this Agreement shall commence on January 27, 1997
(the "Effective Date") and shall expire on December 31, 1998,
unless terminated earlier pursuant to one or more of the
following provisions:
2.1.1 CDS shall have the right to terminate this Agreement
and the Services by delivery of written notice to
Employee, provided that a majority of the Board has
voted to terminate this Agreement not less than
thirty (30) days prior to the delivery of such
notice. In such case, this Agreement shall terminate
thirty (30) days following the date of delivery of
such notice.
<PAGE> 2
2.1.2 Employee shall have the right to terminate this
Agreement and the Services by delivery of written
notice to CDS at any time. In such case, this
Agreement shall terminate thirty (30) days following
the date of delivery of such notice.
2.1.3 This Agreement shall terminate upon Employee's death.
2.2 In the event that any of the following events occurs:
(a) This Agreement is terminated by CDS without "Good
Cause" (defined below), or
(b) Employee resigns for "Good Reason" (defined below)
prior to the expiration of this Agreement's term,
then, in addition to all salary, prorated bonus, and benefits
due to the effective date of termination, CDS shall also pay
to Employee additional salary, prorated bonus and benefits
either for two additional years after the effective date of
termination or until the normal expiration date of this
Agreement, whichever time period is greater.
2.3 If this Agreement is terminated by CDS prior to the end of its
term for Good Cause or if Employee resigns for other than Good
Reason, then CDS shall pay Employee's salary, prorated, and
benefits only through the effective date of termination of
employment.
2.4 As used herein, "Good Cause" shall mean any of the following:
(a) Employee persists in taking actions reasonably
considered to be in material breach of this Agreement
by CDS after notice that such actions are a material
breach of her obligations hereunder; or
(b) Employee is guilty of any grave misconduct or willful
material neglect in any discharge of any of her
material duties hereunder to the serious detriment of
CDS; or
(c) Employee is convicted of any serious criminal offense
which, in the reasonable opinion of the Board,
affects her position as an employee of CDS; or
(d) Employee has engaged in any conduct or has engaged in
relationships with other persons that would, in the
reasonable opinion of the Board, jeopardize any
existing or future gaming licenses held or sought by
CDS.
2.5 As used herein, "Good Reason" shall mean that a "Change in
Control" as defined in Section 11.12 of the CDS 1993 Stock
Option and Compensation Plan, as amended (the "Plan") has
occurred and thereafter one or more of the following occurs:
2
<PAGE> 3
(a) Employee has been demoted; or
(b) Employee has incurred a substantial reduction in his
authority or responsibility; or
(c) There has been a material change in Employee's
working hours or working days to non-normal working
hours or non-normal working days; or
(d) Employee has incurred material reduction in his
remuneration either as base pay or benefits.
3. COMPENSATION.
3.1 From and after the Effective Date, CDS shall pay to Employee a
gross base salary (the "Base Salary") equal to Three Hundred
Thousand Dollars ($300,000.00) per annum, which Base Salary
shall be payable in twenty-six equal installment of Eleven
Thousand Five Hundred Thirty Eight and 46/100 Dollars
($11,538.46). Such installments shall be paid in arrears
every two (2) weeks. The Base Salary may be increased by the
Board.
3.2 In addition to his salary, Employee shall receive a car
allowance of Eight Hundred Dollars ($800.00) per month.
3.3 Employee shall be eligible for an annual or other bonus (the
"Bonus") as determined by a majority vote of the Board. The
Bonus, if any, may be paid in any time or manner designated by
the Board.
3.4 CDS shall withhold all relevant income taxes, unemployment
insurance, Social Security contributions, workers'
compensation insurance, and other customary amounts from
Employee's Base Salary and Bonus, if any, prior to
distribution of the net proceeds therefrom to Employee.
3.5 Employee shall be eligible for any other benefits as may be
provided by CDS from time to time for its executive employees,
pursuant to CDS' policies and eligibility requirements with
respect thereto. Such benefits may be amended, changed, or
terminated from time to time by the Board, in its sole and
absolute discretion, provided that CDS takes such action with
respect to all employees similarly situated as Employee and
does not discriminate against Employee in any such action.
3.6 CDS shall have the right to purchase "key man" insurance
covering Employee at any time. Any such policy and the
proceeds therefrom shall at all times remain the property of
CDS, which shall at all times be the designated beneficiary
thereunder and neither Employee nor his estate, heirs, or
beneficiaries shall have any right, title or interest therein
or thereto.
3
<PAGE> 4
4. NON-COMPETITION.
4.1 This non-competition provision shall remain in effect until:
(a) Employee dies; or
(b) Employee's employment with CDS is terminated without
Good Cause or is terminated by Employee for Good
Reason; or
(c) Two years after the date of the termination of
Employee's employment by CDS for Good Cause or the
termination of Employee's employment by Employee
without Good Reason; or
(d) Two years after the termination of Employee's
employment with CDS by reason of the expiration of
this Agreement and Employee's election not to renew
this Agreement for other than Good Reason.
The term of this non-competition provision shall expire as
specified in the applicable subparagraph above upon the
happening of the first of any of the above events to occur.
4.2 During the term of this non-competition provision, Employee
shall not, either directly or indirectly, for or by himself or
for or in conjunction with any other person, company, or other
entity, whether as an employee, independent contractor,
consultant, shareholder, owner, or otherwise, engage in any
activity in any location or place in the world if such
activity directly or indirectly competes with the business of
CDS. Without limiting the generality of the foregoing, during
the term of this non- competition provision, Employee shall
not call upon any customer or potential customer of CDS or any
related entity of CDS, perform any of the Services or other
activities which he performed while in the employ of CDS for a
competitor of CDS or its related entities, solicit orders for
any products or services similar to those products or services
offered by CDS, sell any products or services competing with
the products or services of CDS, divert or take away any
customer or business opportunity of CDS or any related entity
of CDS, entice or hire away any employee from CDS or any
related entity of CDS, or otherwise compete with CDS in any
manner during the term of this Agreement.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS OF CDS; DISCLAIMER OF RIGHTS TO
TECHNOLOGY AND INTELLECTUAL PROPERTY.
5.1 At all times during the term of this Agreement and from and
after the termination of this Agreement, whether such
termination takes place in accordance with the provisions of
this Agreement or for any other reason, and whether this
Agreement is terminated for or without cause, Employee shall
keep strictly confidential and secret
4
<PAGE> 5
any and all proprietary or confidential information related to
CDS or CDS' business, whether such information is obtained by
Employee in the course of his employment or otherwise.
Without limiting the generality of the foregoing, Employee
shall not disclose to any other person, company, or entity
(except in connection with Employee's duties and obligations
consistent with the terms of this Agreement and the scope of
the Services) any aspect of CDS' business methods,
manufacturing processes, business secrets, business systems or
products, customer names, prospective customers, accounting
systems, computer software or hardware systems, or marketing
or business plans.
5.2 The foregoing notwithstanding, Confidential Information does
not include any of the following:
(a) information which through no wrongful act or failure
to act on the part of Employee becomes generally
known or available, or
(b) information which is furnished to others by CDS
without restriction on disclosure, or
(c) information which is hereafter furnished to Employee
by third parties as a matter of right and without
restriction on disclosure, or
(d) information which is known to others in the industry
or is ascertainable from other sources without a
breach by the other sources of any nondisclosure
agreement on their part.
5.3 At all times during the term of this Agreement and from and
after the termination of this Agreement, Employee shall hold
in a fiduciary capacity for the benefit of CDS and shall
disclose fully to CDS immediately upon origination, discovery,
invention or acquisition, any and all inventions, discoveries,
improvements, apparatus, processes, compounds, formulae,
computer programs, patents, licenses, copyrights and
trademarks made, invented, discovered, developed or secured by
Employee during his employment by CDS, solely or jointly with
others, or otherwise, and which may be directly or indirectly
useful in, or relate to, the manufacture, production, sale,
development, or use of any product or service of CDS, and all
of the foregoing shall be owned exclusively by CDS. Employee
agrees and acknowledges that the compensation paid to Employee
under this Agreement is full and adequate consideration for
Employee's covenants under this Section 5.2 and that Employee
shall not be entitled to receive any other compensation, fee,
commissions, royalty or other amount in connection therewith.
6. INDEMNITY; SURVIVAL.
6.1 Employee and CDS shall indemnify, defend, and hold harmless
the other from and against any and all loss, cost, damage,
liability, or expense, as a result of reckless or
5
<PAGE> 6
malicious conduct of the other, or a willful breach of a duty
of Good Faith. This indemnity shall only apply to Employee's
actions and duties as an employee of CDS. This indemnity is
not intended to nor shall it be interpreted to alter, amend or
in any way affect Employee's actions or duties as a member of
the Board, or the respective indemnification provisions
affecting or relating to all Directors of CDS.
6.2 The provisions of Articles 4, 5 and 6 of this Agreement shall
survive the termination of this Agreement.
7. MISCELLANEOUS PROVISIONS.
7.1 Files. All records contained in the files of CDS (other than
Employee's personal financial information) shall be the
property of CDS and Employee shall not remove such records
upon the termination of Employee's employment with CDS.
7.2 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements
between the parties with respect thereto. This Agreement may
not be altered, amended, changed, terminated or modified in
any respect or particular unless the same shall be in writing
and signed by the part to be charged.
7.3 Attorney's Fees. In the event of any action for breach of, to
enforce the provisions of, or otherwise arising out of or in
connection with this Agreement, the prevailing party in such
action, as determined by the court in such action, shall be
entitled to receive its reasonable attorneys' fees and costs
form the other party. If a party voluntarily dismisses an
action, a reasonable sum as attorneys' fees shall be awarded
to the other party.
7.4 Nevada Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Nevada. This parties hereby consent to the personal
jurisdiction of any court of competent jurisdiction with the
State of Nevada. The exclusive venue for any action or
proceeding relating to or arising out of this Agreement shall
be Clark County, Nevada.
7.5 Binding Effect. Employee acknowledges that Employee's
obligations and duties under this Agreement are unique
personal services benefiting CDS and shall not be delegated in
any manner or respect nor shall this Agreement be assigned by
Employee. This Agreement may not be assigned by CDS without
Employee's prior consent, except in connection with any sale
or transfer of all or part of CDS' business, in which case no
consent of Employee shall be required. This Agreement shall
be binding upon and inure to the benefit of any permitted
heirs, successors, and assigns.
7.6 Validity. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be valid based
upon applicable law. But, if any provision or part of any
provision of this Agreement shall be held by a court of
competent jurisdiction
6
<PAGE> 7
to be invalid or prohibited thereunder, such provision or part
of any such provision shall be ineffective only to the extent
of such invalidity or prohibition, without invalidating the
remainder of such provision or the remaining provisions of
this Agreement.
7.7 Headings. The headings of the paragraphs of this Agreement
are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the
construction of any term or provision of this Agreement.
7.8 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and delivered in person to
the other party, or sent by certified United States Mail, with
postage prepaid.
7.9 Waiver. The failure of either party to enforce any of its
rights or remedies in connection with a breach of this
Agreement by the other party or in any other case shall not be
deemed to be a waiver of said first party's rights or remedies
with respect thereto or with respect to any other breach of
this Agreement by the other party. No such waiver of rights
or remedies shall exist unless the same shall be in writing
and signed by the party to be charged.
7.10 Remedies. Employee acknowledges that CDS' remedy at law for
any breach or threatened breach by Employee of Articles 4 and
5 hereof will be inadequate. Therefore, CDS shall be entitled
to injunctive and other equitable relief restraining Employee
from violating those requirements, in addition to any other
remedies that may be available to CDS under this Agreement or
applicable law.
IN WITNESS WHEREOF, CDS and Employee have executed this Agreement as
of the date first set forth above.
CASINO DATA SYSTEMS,
a Nevada corporation
s/ Steven A. Weiss By: s/ Diana L. Bennett
- ------------------------- ----------------------------
Steven A. Weiss Its: President/COO
7
<PAGE> 1
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 27th day of January, 1997, by and between Casino Data Systems, a
Nevada corporation ("CDS") and Daniel N. Copp ("Employee"). For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CDS and Employee hereby agree as follows:
1. EMPLOYMENT; SERVICES.
1.1 CDS hereby hires and employs Employee and Employee hereby
accepts such hiring and employment for the position of Chief
Executive Officer and for the purpose of performing those
services (the "Services") which are usual and customary for a
Chief Executive Officer. Employee shall use diligent efforts
and shall devote such time and energies as may be reasonably
required to perform the Services to the best of his ability.
1.2 During the term of this Agreement, Employee shall not (i) work
as an employee of or independent consultant or contractor for,
or provide any other services for hire or benefit to, any
third party that competes with CDS or its related entities, or
(ii) engage in any activity that in any way competes with the
interests of CDS, whether Employee is acting by himself or as
an officer, director, shareholder, partner, fiduciary, or
otherwise, unless Employee shall first receive the written
consent of a majority of the CDS Board of Directors (the
"Board").
1.3 Employee shall report to the Chairman of the Board. The Board
shall at all times during the term of this Agreement have
final and complete authority over Employee with respect to all
decisions related to the Services and the direction and
control of Employee. In all such cases, the Board shall act
by majority vote. In every case under this Agreement where a
vote of the Board is required, such vote shall not include
Employee's vote at any time that Employee is a member of the
Board.
2. TERM.
2.1 The term of this Agreement shall commence on January 27, 1997
(the "Effective Date") and shall expire on December 31, 1998,
unless terminated earlier pursuant to one or more of the
following provisions:
2.1.1 CDS shall have the right to terminate this Agreement
and the Services by delivery of written notice to
Employee, provided that a majority of the Board has
voted to terminate this Agreement not less than
thirty (30) days prior to the delivery of such
notice. In such case, this Agreement shall terminate
thirty (30) days following the date of delivery of
such notice.
2.1.2 Employee shall have the right to terminate this
Agreement and the Services by delivery of written
notice to CDS at any time. In such case, this
<PAGE> 2
Agreement shall terminate thirty (30) days following
the date of delivery of such notice.
2.1.3 This Agreement shall terminate upon Employee's death.
2.2 In the event that any of the following events occurs:
(a) This Agreement is terminated by CDS without "Good
Cause" (defined below), or
(b) Employee resigns for "Good Reason" (defined below)
prior to the expiration of this Agreement's term,
then, in addition to all salary, prorated bonus, and benefits
due to the effective date of termination, CDS shall also pay
to Employee additional salary, prorated bonus and benefits
either for one additional year after the effective date of
termination or until the normal expiration date of this
Agreement, whichever time period is greater.
2.3 If this Agreement is terminated by CDS prior to the end of its
term for Good Cause or if Employee resigns for other than Good
Reason, then CDS shall pay Employee's salary, prorated, and
benefits only through the effective date of termination of
employment.
2.4 As used herein, "Good Cause" shall mean any of the following:
(a) Employee persists in taking actions reasonably
considered to be in material breach of this Agreement
by CDS after notice that such actions are a material
breach of her obligations hereunder; or
(b) Employee is guilty of any grave misconduct or willful
material neglect in any discharge of any of her
material duties hereunder to the serious detriment of
CDS; or
(c) Employee is convicted of any serious criminal offense
which, in the reasonable opinion of the Board,
affects her position as an employee of CDS; or
(d) Employee has engaged in any conduct or has engaged in
relationships with other persons that would, in the
reasonable opinion of the Board, jeopardize any
existing or future gaming licenses held or sought by
CDS.
2.5 As used herein, "Good Reason" shall mean that a "Change in
Control" as defined in Section 11.12 of the CDS 1993 Stock
Option and Compensation Plan, as amended (the "Plan") has
occurred and thereafter one or more of the following occurs:
(a) Employee has been demoted; or
2
<PAGE> 3
(b) Employee has incurred a substantial reduction in his
authority or responsibility; or
(c) There has been a material change in Employee's
working hours or working days to non-normal working
hours or non-normal working days; or
(d) Employee has incurred material reduction in his
remuneration either as base pay or benefits.
3. COMPENSATION.
3.1 From and after the Effective Date, CDS shall pay to Employee a
gross base salary (the "Base Salary") equal to Two Hundred
Thousand Dollars ($200,000.00) per annum, which Base Salary
shall be payable in twenty-six equal installment of Seven
Thousand Six Hundred Ninety Two and 31/100 Dollars
($7,692.31). Such installments shall be paid in arrears every
two (2) weeks. The Base Salary may be increased by the Board.
3.2 In addition to his salary, Employee shall receive a car
allowance of Eight Hundred Dollars ($800.00) per month.
3.3 Employee shall be eligible for an annual or other bonus (the
"Bonus") as determined by a majority vote of the Board. The
Bonus, if any, may be paid in any time or manner designated by
the Board.
3.4 CDS shall withhold all relevant income taxes, unemployment
insurance, Social Security contributions, workers'
compensation insurance, and other customary amounts from
Employee's Base Salary and Bonus, if any, prior to
distribution of the net proceeds therefrom to Employee.
3.5 Employee shall be eligible for any other benefits as may be
provided by CDS from time to time for its executive employees,
pursuant to CDS' policies and eligibility requirements with
respect thereto. Such benefits may be amended, changed, or
terminated from time to time by the Board, in its sole and
absolute discretion, provided that CDS takes such action with
respect to all employees similarly situated as Employee and
does not discriminate against Employee in any such action.
3.6 CDS shall have the right to purchase "key man" insurance
covering Employee at any time. Any such policy and the
proceeds therefrom shall at all times remain the property of
CDS, which shall at all times be the designated beneficiary
thereunder and neither Employee nor his estate, heirs, or
beneficiaries shall have any right, title or interest therein
or thereto.
4. NON-COMPETITION.
4.1 This non-competition provision shall remain in effect until:
3
<PAGE> 4
(a) Employee dies; or
(b) Employee's employment with CDS is terminated without
Good Cause or is terminated by Employee for Good
Reason; or
(c) Two years after the date of the termination of
Employee's employment by CDS for Good Cause or the
termination of Employee's employment by Employee
without Good Reason; or
(d) Two years after the termination of Employee's
employment with CDS by reason of the expiration of
this Agreement and Employee's election not to renew
this Agreement for other than Good Reason.
The term of this non-competition provision shall expire as
specified in the applicable subparagraph above upon the
happening of the first of any of the above events to occur.
4.2 During the term of this non-competition provision, Employee
shall not, either directly or indirectly, for or by himself or
for or in conjunction with any other person, company, or other
entity, whether as an employee, independent contractor,
consultant, shareholder, owner, or otherwise, engage in any
activity in any location or place in the world if such
activity directly or indirectly competes with the business of
CDS. Without limiting the generality of the foregoing, during
the term of this non- competition provision, Employee shall
not call upon any customer or potential customer of CDS or any
related entity of CDS, perform any of the Services or other
activities which he performed while in the employ of CDS for a
competitor of CDS or its related entities, solicit orders for
any products or services similar to those products or services
offered by CDS, sell any products or services competing with
the products or services of CDS, divert or take away any
customer or business opportunity of CDS or any related entity
of CDS, entice or hire away any employee from CDS or any
related entity of CDS, or otherwise compete with CDS in any
manner during the term of this Agreement.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS OF CDS; DISCLAIMER OF RIGHTS TO
TECHNOLOGY AND INTELLECTUAL PROPERTY.
5.1 At all times during the term of this Agreement and from and
after the termination of this Agreement, whether such
termination takes place in accordance with the provisions of
this Agreement or for any other reason, and whether this
Agreement is terminated for or without cause, Employee shall
keep strictly confidential and secret any and all proprietary
or confidential information related to CDS or CDS' business,
whether such information is obtained by Employee in the course
of his employment or otherwise. Without limiting the
generality of the foregoing, Employee shall not disclose to
any other person, company, or entity (except in connection
with
4
<PAGE> 5
Employee's duties and obligations consistent with the terms of
this Agreement and the scope of the Services) any aspect of
CDS' business methods, manufacturing processes, business
secrets, business systems or products, customer names,
prospective customers, accounting systems, computer software
or hardware systems, or marketing or business plans.
5.2 The foregoing notwithstanding, Confidential Information does
not include any of the following:
(a) information which through no wrongful act or failure
to act on the part of Employee becomes generally
known or available, or
(b) information which is furnished to others by CDS
without restriction on disclosure, or
(c) information which is hereafter furnished to Employee
by third parties as a matter of right and without
restriction on disclosure, or
(d) information which is known to others in the industry
or is ascertainable from other sources without a
breach by the other sources of any nondisclosure
agreement on their part.
5.3 At all times during the term of this Agreement and from and
after the termination of this Agreement, Employee shall hold
in a fiduciary capacity for the benefit of CDS and shall
disclose fully to CDS immediately upon origination, discovery,
invention or acquisition, any and all inventions, discoveries,
improvements, apparatus, processes, compounds, formulae,
computer programs, patents, licenses, copyrights and
trademarks made, invented, discovered, developed or secured by
Employee during his employment by CDS, solely or jointly with
others, or otherwise, and which may be directly or indirectly
useful in, or relate to, the manufacture, production, sale,
development, or use of any product or service of CDS, and all
of the foregoing shall be owned exclusively by CDS. Employee
agrees and acknowledges that the compensation paid to Employee
under this Agreement is full and adequate consideration for
Employee's covenants under this Section 5.2 and that Employee
shall not be entitled to receive any other compensation, fee,
commissions, royalty or other amount in connection therewith.
6. INDEMNITY; SURVIVAL.
6.1 Employee and CDS shall indemnify, defend, and hold harmless
the other from and against any and all loss, cost, damage,
liability, or expense, as a result of reckless or malicious
conduct of the other, or a willful breach of a duty of Good
Faith. This indemnity shall only apply to Employee's actions
and duties as an employee of CDS. This indemnity is not
intended to nor shall it be interpreted to alter, amend or in
any
5
<PAGE> 6
way affect Employee's actions or duties as a member of the
Board, or the respective indemnification provisions affecting
or relating to all Directors of CDS.
6.2 The provisions of Articles 4, 5 and 6 of this Agreement shall
survive the termination of this Agreement.
7. GRANT OF OPTIONS.
7.1 If the last sale price for the common stock as reported on the
Nasdaq Stock Market equals or exceeds $10 per share for five
consecutive trading days, Employee shall receive an additional
grant of options, dated effective as of the last such date, to
purchase Twenty Thousand (20,000) shares of common stock of
CDS in the form attached hereto as EXHIBIT A, which options
shall vest ratably over a three-year period beginning one year
from the date of grant.
7.2 Thereafter, if the last sale price for the common stock as
reported on the Nasdaq Stock Market equals or exceeds $12 per
share for five consecutive trading days, Employee shall
receive an additional grant of options, dated effective as of
the last such date, to purchase Twenty Thousand (20,000)
shares of common stock of CDS in the form attached hereto as
EXHIBIT A, which options shall vest ratably over a three-year
period beginning one year from the date of grant.
7.3 Thereafter, if the last sale price for the common stock as
reported on the Nasdaq Stock Market equals or exceeds $16 per
share for five consecutive trading days, Employee shall
receive an additional grant of options, dated effective as of
the last such date, to purchase Twenty Thousand (20,000)
shares of common stock of CDS in the form attached hereto as
EXHIBIT A, which options shall vest ratably over a three-year
period beginning one year from the date of grant.
6
<PAGE> 7
8. MISCELLANEOUS PROVISIONS.
8.1 Files. All records contained in the files of CDS shall be the
property of CDS and Employee shall not remove such records
upon the termination of Employee's employment with CDS.
8.2 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements
between the parties with respect thereto. This Agreement may
not be altered, amended, changed, terminated or modified in
any respect or particular unless the same shall be in writing
and signed by the part to be charged.
8.3 Attorney's Fees. In the event of any action for breach of, to
enforce the provisions of, or otherwise arising out of or in
connection with this Agreement, the prevailing party in such
action, as determined by the court in such action, shall be
entitled to receive its reasonable attorneys' fees and costs
form the other party. If a party voluntarily dismisses an
action, a reasonable sum as attorneys' fees shall be awarded
to the other party.
8.4 Nevada Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Nevada. This parties hereby consent to the personal
jurisdiction of any court of competent jurisdiction with the
State of Nevada. The exclusive venue for any action or
proceeding relating to or arising out of this Agreement shall
be Clark County, Nevada.
8.5 Binding Effect. Employee acknowledges that Employee's
obligations and duties under this Agreement are unique
personal services benefiting CDS and shall not be delegated in
any manner or respect nor shall this Agreement be assigned by
Employee. This Agreement may not be assigned by CDS without
Employee's prior consent, except in connection with any sale
or transfer of all or part of CDS' business, in which case no
consent of Employee shall be required. This Agreement shall
be binding upon and inure to the benefit of any permitted
heirs, successors, and assigns.
8.6 Validity. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be valid based
upon applicable law. But, if any provision or part of any
provision of this Agreement shall be held by a court of
competent jurisdiction to be invalid or prohibited thereunder,
such provision or part of any such provision shall be
ineffective only to the extent of such invalidity or
prohibition, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
8.7 Headings. The headings of the paragraphs of this Agreement
are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the
construction of any term or provision of this Agreement.
7
<PAGE> 8
8.8 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and delivered in person to
the other party, or sent by certified United States Mail, with
postage prepaid.
8.9 Waiver. The failure of either party to enforce any of its
rights or remedies in connection with a breach of this
Agreement by the other party or in any other case shall not be
deemed to be a waiver of said first party's rights or remedies
with respect thereto or with respect to any other breach of
this Agreement by the other party. No such waiver of rights
or remedies shall exist unless the same shall be in writing
and signed by the party to be charged.
8.10 Remedies. Employee acknowledges that CDS' remedy at law for
any breach or threatened breach by Employee of Articles 4 and
5 hereof will be inadequate. Therefore, CDS shall be entitled
to injunctive and other equitable relief restraining Employee
from violating those requirements, in addition to any other
remedies that may be available to CDS under this Agreement or
applicable law.
IN WITNESS WHEREOF, CDS and Employee have executed this Agreement as
of the date first set forth above.
CASINO DATA SYSTEMS,
a Nevada corporation
s/Daniel N. Copp By: s/Steven A. Weiss
- ------------------------ ---------------------------------
Daniel N. Copp Its: Chairman of the Board
----------------------------
8
<PAGE> 9
EXHIBIT A
STOCK OPTION AGREEMENT
9
<PAGE> 10
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT made effective as of this ______ day
of ____________, 199__, between Casino Data Systems, a Nevada corporation (the
"Company"), and Daniel N. Copp ("Employee").
RECITALS:
A. The Company and Employee are parties to that certain employment
agreement dated as of January 27, 1997 (the "Employment Agreement").
B. Pursuant to Section 7 of the Employment Agreement, the Company
has become obligated to provide Employee the opportunity to purchase shares of
the Company's Common Stock, pursuant to the terms and conditions of this
Agreement and the Company's 1993 Stock Option and Compensation Plan, as amended
(the "Plan"), the terms and conditions of which are incorporated herein by
reference.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Employee the right
and option, hereinafter called the Option, to purchase all or any part of an
aggregate of 20,000 shares of the common stock, no par value, of the Company
(the "Shares") (such number being subject to adjustment as provided in Section
11.6 of the Plan, which adjustments shall be made to all Shares underlying this
Option, whether or not vested). The Option will be granted pursuant to the
Plan and is subject to the terms and conditions thereof. The terms of this
Agreement shall control in the event of any conflict or inconsistency between
the Plan and this Agreement.
2. Purchase Price. The purchase price of the Shares covered by the
Option shall be the closing bid price on the date the Option is granted
(subject to adjustment as provided in Section 11.6 of the Plan, which
adjustments shall be made to the Purchase Price of all Shares underlying this
Option, whether or not vested).
3. Exercise and Vesting of Option. The Option shall be exercisable
only to the extent that all, or any portion thereof, has vested in Employee.
Subject to Section 5 hereof, the Option shall vest in the Employee in three
parts of 6,667, 6,666, and 6,666 Shares each, beginning on the date of the
first anniversary of the date hereof (the "Effective Date") and continuing on
each subsequent anniversary date (hereinafter referred to singularly as a
"Vesting Date" and collectively as "Vesting Dates") until the Option is fully
vested, as set forth in the following schedule:
<PAGE> 11
<TABLE>
<CAPTION>
Total Shares Subject
to Vested Option Vesting Date
-------------------- ------------
<S> <C>
6,667 . . . . . . . . . . . . . First Anniversary of Effective Date
13,333 . . . . . . . . . . . . . Second Anniversary of Effective Date
20,000 . . . . . . . . . . . . . Third Anniversary of Effective Date
</TABLE>
In the event that the Employee ceases to be employed by the Company,
for any reason or no reason, with or without Good Cause, including by reason of
death or disability, prior to any Vesting Date, that part of the Option
scheduled to vest on such Vesting Date, and all parts of the Option scheduled
to vest in the future, shall not vest and all of Employee's rights to and under
such non-vested parts of the Option shall terminate. Vested options shall not
be subject to forfeiture by the Employee under any circumstances, including,
without limitation, in the event that the Employee ceases to be employed by the
Company for any reason or no reason, including termination by the Employee.
4. Term of Option. To the extent vested, and except as otherwise
provided in this Agreement, the Option shall be exercisable for five (5) years
from the date of grant; provided, however, that in the event that Employee
ceases to be employed by the Company, for any reason or no reason, with or
without Good Cause, including by reason of death or disability, Employee or
Employee's legal representative shall have six (6) months from the date of such
termination of Employee's employment to exercise any part of the Option vested
pursuant to Section 3 of this Agreement. Upon the expiration of such six (6)
month period, or, if earlier, upon the expiration date of the Option as set
forth above, the Option shall terminate and become null and void.
5. Accelerated Vesting Upon a Change in Control.
Notwithstanding anything herein to the contrary, in the event that at any time
after the Effective Date the vesting of any restricted shares, options, SARs,
performance shares or other incentives granted under the Plan is accelerated
pursuant to Section 11.12 of the Plan, "Immediate Acceleration of Incentives,"
the Option shall immediately vest in full.
6. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised as provided in the
Plan.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date first above written.
CASINO DATA SYSTEMS,
a Nevada corporation
____________________________ By: _________________________________
Daniel N. Copp Its:_____________________________
2
<PAGE> 1
EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 27th day of January, 1997, by and between Casino Data Systems, a
Nevada corporation ("CDS") and Diana L. Bennett ("Employee"). For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CDS and Employee hereby agree as follows:
1. EMPLOYMENT; SERVICES.
1.1 CDS hereby hires and employs Employee, and Employee hereby
accepts such hiring and employment, for the position of
President and Chief Operating Officer and for the purpose of
performing those services (the "Services") which are usual and
customary for a President and Chief Operating Officer.
Employee shall use diligent efforts and shall devote such time
and energies as may be reasonably required to perform the
Services to the best of her ability.
1.2 During the term of this Agreement, Employee shall not (i) work
as an employee of or independent consultant or contractor for,
or provide any other services for hire or benefit to, any
third party that competes with CDS or its related entities, or
(ii) engage in any activity that in any way competes with the
interests of CDS, whether Employee is acting by herself or as
an officer, director, shareholder, partner, fiduciary, or
otherwise, unless Employee shall first receive the written
consent of a majority of CDS' Board of Directors (the
"Board").
1.3 Employee shall report to the Chairman of the Board. The Board
shall at all times during the term of this Agreement have
final and complete authority over Employee with respect to all
decisions related to the Services and the direction and
control of Employee. In all such cases, the Board shall act
by majority vote. In every case under this Agreement where a
vote of the Board is required, such vote shall not include
Employee's vote at any time that Employee is a member of the
Board.
2. TERM.
2.1 The term of this Agreement shall commence on January 27, 1997
(the "Effective Date") and shall expire on December 31, 1998,
unless terminated earlier pursuant to one or more of the
following provisions:
2.1.1 CDS shall have the right to terminate this Agreement
and the Services by delivery of written notice to
Employee, provided that a majority of the Board has
voted to terminate this Agreement not less than
thirty (30) days prior to the delivery of such
notice. In such case, this Agreement shall terminate
thirty (30) days following the date of delivery of
such notice.
<PAGE> 2
2.1.2 Employee shall have the right to terminate this
Agreement and the Services by delivery of written
notice to CDS at any time. In such case, this
Agreement shall terminate thirty (30) days following
the date of delivery of such notice.
2.1.3 This Agreement shall terminate upon Employee's death.
2.2 In the event that any of the following events occurs:
(a) This Agreement is terminated by CDS without "Good
Cause" (defined below), or
(b) Employee resigns for "Good Reason" (defined below)
prior to the expiration of this Agreement's term,
then, in addition to all salary, prorated bonus, and benefits
due to the effective date of termination, CDS shall also pay
to Employee additional salary, prorated bonus and benefits
either for one additional year after the effective date of
termination or until the normal expiration date of this
Agreement, whichever time period is greater.
2.3 If this Agreement is terminated by CDS prior to the end of its
term for Good Cause or if Employee resigns for other than Good
Reason, then CDS shall pay Employee's salary, prorated, and
benefits only through the effective date of termination of
employment.
2.4 As used herein, "Good Cause" shall mean any of the following:
(a) Employee persists in taking actions reasonably
considered to be in material breach of this Agreement
by CDS after notice that such actions are a material
breach of her obligations hereunder; or
(b) Employee is guilty of any grave misconduct or willful
material neglect in any discharge of any of her
material duties hereunder to the serious detriment of
CDS; or
(c) Employee is convicted of any serious criminal offense
which, in the reasonable opinion of the Board,
affects her position as an employee of CDS; or
(d) Employee has engaged in any conduct or has engaged in
relationships with other persons that would, in the
reasonable opinion of the Board, jeopardize any
existing or future gaming licenses held or sought by
CDS.
2.5 As used herein, "Good Reason" shall mean that a "Change in
Control" as defined in Section 11.12 of the CDS 1993 Stock
Option and Compensation Plan, as amended (the "Plan") has
occurred and thereafter one or more of the following occurs:
2
<PAGE> 3
(a) Employee has been demoted; or
(b) Employee has incurred a substantial reduction in her
authority or responsibility; or
(c) There has been a material change in Employee's
working hours or working days to non-normal working
hours or non-normal working days; or
(d) Employee has incurred material reduction in her
remuneration either as base pay or benefits.
3. COMPENSATION.
3.1 From and after the Effective Date, CDS shall pay to Employee a
gross base salary (the "Base Salary") equal to Two Hundred
Thousand Dollars ($200,000.00) per annum, which Base Salary
shall be payable in twenty-six equal installment of Seven
Thousand Six Hundred Ninety Two and 31/100 Dollars
($7,692.31). Such installments shall be paid in arrears every
two (2) weeks. The Base Salary may be increased by the Board.
3.2 In addition to her salary, Employee shall receive a car
allowance of Eight Hundred Dollars ($800.00) per month.
3.3 Employee shall be eligible for an annual or other bonus (the
"Bonus") as determined by a majority vote of the Board. The
Bonus, if any, may be paid in any time or manner designated by
the Board.
3.4 CDS shall withhold all relevant income taxes, unemployment
insurance, Social Security contributions, workers'
compensation insurance, and other customary amounts from
Employee's Base Salary and Bonus, if any, prior to
distribution of the net proceeds therefrom to Employee.
3.5 Employee shall be eligible for any other benefits as may be
provided by CDS from time to time for its executive employees,
pursuant to CDS' policies and eligibility requirements with
respect thereto. Such benefits may be amended, changed, or
terminated from time to time by the Board, in its sole and
absolute discretion, provided that CDS takes such action with
respect to all employees similarly situated as Employee and
does not discriminate against Employee in any such action.
3.6 CDS shall have the right to purchase "key man" insurance
covering Employee at any time. Any such policy and the
proceeds therefrom shall at all times remain the property of
CDS, which shall at all times be the designated beneficiary
thereunder and neither Employee nor her estate, heirs, or
beneficiaries shall have any right, title or interest therein
or thereto.
3
<PAGE> 4
4. NON-COMPETITION.
4.1 This non-competition provision shall remain in effect until:
(a) Employee dies; or
(b) Employee's employment with CDS is terminated without
Good Cause or is terminated by Employee for Good
Reason; or
(c) Two years after the date of the termination of
Employee's employment by CDS for Good Cause or the
termination of Employee's employment by Employee
without Good Reason; or
(d) Two years after the termination of Employee's
employment with CDS by reason of the expiration of
this Agreement and Employee's election not to renew
this Agreement for other than Good Reason.
The term of this non-competition provision shall expire as
specified in the applicable subparagraph above upon the
happening of the first of any of the above events to occur.
4.2 During the term of this non-competition provision, Employee
shall not, either directly or indirectly, for or by herself or
for or in conjunction with any other person, company, or other
entity, whether as an employee, independent contractor,
consultant, shareholder, owner, or otherwise, engage in any
activity in any location or place in the world if such
activity directly or indirectly competes with the business of
CDS. Without limiting the generality of the foregoing, during
the term of this non- competition provision, Employee shall
not call upon any customer or potential customer of CDS or any
related entity of CDS, perform any of the Services or other
activities which she performed while in the employ of CDS for
a competitor of CDS or its related entities, solicit orders
for any products or services similar to those products or
services offered by CDS, sell any products or services
competing with the products or services of CDS, divert or take
away any customer or business opportunity of CDS or any
related entity of CDS, entice or hire away any employee from
CDS or any related entity of CDS, or otherwise compete with
CDS in any manner during the term of this Agreement.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS OF CDS; DISCLAIMER OF RIGHTS TO
TECHNOLOGY AND INTELLECTUAL PROPERTY.
5.1 At all times during the term of this Agreement and from and
after the termination of this Agreement, whether such
termination takes place in accordance with the provisions of
this Agreement or for any other reason, and whether this
Agreement is terminated for or without cause, Employee shall
keep strictly confidential and secret any and all proprietary
or confidential information related to CDS or CDS' business,
4
<PAGE> 5
whether such information is obtained by Employee in the course
of her employment or otherwise. Without limiting the
generality of the foregoing, Employee shall not disclose to
any other person, company, or entity (except in connection
with Employee's duties and obligations consistent with the
terms of this Agreement and the scope of the Services) any
aspect of CDS' business methods, manufacturing processes,
business secrets, business systems or products, customer
names, prospective customers, accounting systems, computer
software or hardware systems, or marketing or business plans.
5.2 The foregoing notwithstanding, Confidential Information does
not include any of the following:
(a) information which through no wrongful act or failure
to act on the part of Employee becomes generally
known or available, or
(b) information which is furnished to others by CDS
without restriction on disclosure, or
(c) information which is hereafter furnished to Employee
by third parties as a matter of right and without
restriction on disclosure, or
(d) information which is known to others in the industry
or is ascertainable from other sources without a
breach by the other sources of any nondisclosure
agreement on their part.
5.3 At all times during the term of this Agreement and from and
after the termination of this Agreement, Employee shall hold
in a fiduciary capacity for the benefit of CDS and shall
disclose fully to CDS immediately upon origination, discovery,
invention or acquisition, any and all inventions, discoveries,
improvements, apparatus, processes, compounds, formulae,
computer programs, patents, licenses, copyrights and
trademarks made, invented, discovered, developed or secured by
Employee during her employment by CDS, solely or jointly with
others, or otherwise, and which may be directly or indirectly
useful in, or relate to, the manufacture, production, sale,
development, or use of any product or service of CDS, and all
of the foregoing shall be owned exclusively by CDS. Employee
agrees and acknowledges that the compensation paid to Employee
under this Agreement is full and adequate consideration for
Employee's covenants under this Section 5.2 and that Employee
shall not be entitled to receive any other compensation, fee,
commissions, royalty or other amount in connection therewith.
6. INDEMNITY; SURVIVAL.
6.1 Employee and CDS shall indemnify, defend, and hold harmless
the other from and against any and all loss, cost, damage,
liability, or expense, as a result of reckless or malicious
conduct of the other, or a willful breach of a duty of Good
Faith. This
5
<PAGE> 6
indemnity shall only apply to Employee's actions and duties as
an employee of CDS. This indemnity is not intended to nor
shall it be interpreted to alter, amend or in any way affect
Employee's actions or duties as a member of the Board, or the
respective indemnification provisions affecting or relating to
all Directors of CDS.
6.2 The provisions of Articles 4, 5 and 6 of this Agreement shall
survive the termination of this Agreement.
7. GRANT OF OPTIONS.
7.1 If the last sale price for the common stock as reported on the
Nasdaq Stock Market equals or exceeds $10 per share for five
consecutive trading days, Employee shall receive an additional
grant of options, dated effective as of the last such date, to
purchase Twenty Thousand (20,000) shares of common stock of
CDS in the form attached hereto as EXHIBIT A, which options
shall vest ratably over a three-year period beginning one year
from the date of grant.
7.2 Thereafter, if the last sale price for the common stock as
reported on the Nasdaq Stock Market equals or exceeds $12 per
share for five consecutive trading days, Employee shall
receive an additional grant of options, dated effective as of
the last such date, to purchase Twenty Thousand (20,000)
shares of common stock of CDS in the form attached hereto as
EXHIBIT A, which options shall vest ratably over a three-year
period beginning one year from the date of grant.
7.3 Thereafter, if the last sale price for the common stock as
reported on the Nasdaq Stock Market equals or exceeds $16 per
share for five consecutive trading days, Employee shall
receive an additional grant of options, dated effective as of
the last such date, to purchase Twenty Thousand (20,000)
shares of common stock of CDS in the form attached hereto as
EXHIBIT A, which options shall vest ratably over a three-year
period beginning one year from the date of grant.
6
<PAGE> 7
8. MISCELLANEOUS PROVISIONS.
8.1 Files. All records contained in the files of CDS shall be the
property of CDS and Employee shall not remove such records
upon the termination of Employee's employment with CDS.
8.2 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements
between the parties with respect thereto. This Agreement may
not be altered, amended, changed, terminated or modified in
any respect or particular unless the same shall be in writing
and signed by the part to be charged.
8.3 Attorney's Fees. In the event of any action for breach of, to
enforce the provisions of, or otherwise arising out of or in
connection with this Agreement, the prevailing party in such
action, as determined by the court in such action, shall be
entitled to receive its reasonable attorneys' fees and costs
form the other party. If a party voluntarily dismisses an
action, a reasonable sum as attorneys' fees shall be awarded
to the other party.
8.4 Nevada Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Nevada. This parties hereby consent to the personal
jurisdiction of any court of competent jurisdiction with the
State of Nevada. The exclusive venue for any action or
proceeding relating to or arising out of this Agreement shall
be Clark County, Nevada.
8.5 Binding Effect. Employee acknowledges that Employee's
obligations and duties under this Agreement are unique
personal services benefiting CDS and shall not be delegated in
any manner or respect nor shall this Agreement be assigned by
Employee. This Agreement may not be assigned by CDS without
Employee's prior consent, except in connection with any sale
or transfer of all or part of CDS' business, in which case no
consent of Employee shall be required. This Agreement shall
be binding upon and inure to the benefit of any permitted
heirs, successors, and assigns.
8.6 Validity. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be valid based
upon applicable law. But, if any provision or part of any
provision of this Agreement shall be held by a court of
competent jurisdiction to be invalid or prohibited thereunder,
such provision or part of any such provision shall be
ineffective only to the extent of such invalidity or
prohibition, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
8.7 Headings. The headings of the paragraphs of this Agreement
are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the
construction of any term or provision of this Agreement.
7
<PAGE> 8
8.8 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and delivered in person to
the other party, or sent by certified United States Mail, with
postage prepaid.
8.9 Waiver. The failure of either party to enforce any of its
rights or remedies in connection with a breach of this
Agreement by the other party or in any other case shall not be
deemed to be a waiver of said first party's rights or remedies
with respect thereto or with respect to any other breach of
this Agreement by the other party. No such waiver of rights
or remedies shall exist unless the same shall be in writing
and signed by the party to be charged.
8.10 Remedies. Employee acknowledges that CDS' remedy at law for
any breach or threatened breach by Employee of Articles 4 and
5 hereof will be inadequate. Therefore, CDS shall be entitled
to injunctive and other equitable relief restraining Employee
from violating those requirements, in addition to any other
remedies that may be available to CDS under this Agreement or
applicable law.
IN WITNESS WHEREOF, CDS and Employee have executed this Agreement as
of the date first set forth above.
CASINO DATA SYSTEMS,
a Nevada corporation
s/ Diana L. Bennett By: s/ Steven A. Weiss
- ------------------------- ---------------------------------
Diana L. Bennett Its: Chairman of the Board
----------------------------
8
<PAGE> 9
EXHIBIT A
STOCK OPTION AGREEMENT
9
<PAGE> 10
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT made effective as of this ______ day
of ____________, 199__, between Casino Data Systems, a Nevada corporation (the
"Company"), and Diana L. Bennett ("Employee").
RECITALS:
A. The Company and Employee are parties to that certain employment
agreement dated as of January 27, 1997 (the "Employment Agreement").
B. Pursuant to Section 7 of the Employment Agreement, the Company
has become obligated to provide Employee the opportunity to purchase shares of
the Company's Common Stock, pursuant to the terms and conditions of this
Agreement and the Company's 1993 Stock Option and Compensation Plan, as amended
(the "Plan"), the terms and conditions of which are incorporated herein by
reference.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Employee the right
and option, hereinafter called the Option, to purchase all or any part of an
aggregate of 20,000 shares of the common stock, no par value, of the Company
(the "Shares") (such number being subject to adjustment as provided in Section
11.6 of the Plan, which adjustments shall be made to all Shares underlying this
Option, whether or not vested). The Option will be granted pursuant to the
Plan and is subject to the terms and conditions thereof. The terms of this
Agreement shall control in the event of any conflict or inconsistency between
the Plan and this Agreement.
2. Purchase Price. The purchase price of the Shares covered by the
Option shall be the closing bid price on the date the Option is granted
(subject to adjustment as provided in Section 11.6 of the Plan, which
adjustments shall be made to the Purchase Price of all Shares underlying this
Option, whether or not vested).
3. Exercise and Vesting of Option. The Option shall be exercisable
only to the extent that all, or any portion thereof, has vested in Employee.
Subject to Section 5 hereof, the Option shall vest in the Employee in three
parts of 6,667, 6,666, and 6,666 Shares each, beginning on the date of the
first anniversary of the date hereof (the "Effective Date") and continuing on
each subsequent anniversary date (hereinafter referred to singularly as a
"Vesting Date" and collectively as "Vesting Dates") until the Option is fully
vested, as set forth in the following schedule:
<PAGE> 11
<TABLE>
<CAPTION>
Total Shares Subject
to Vested Option Vesting Date
-------------------- ------------
<S> <C>
6,667 . . . . . . . . . . . . . First Anniversary of Effective Date
13,333 . . . . . . . . . . . . . Second Anniversary of Effective Date
20,000 . . . . . . . . . . . . . Third Anniversary of Effective Date
</TABLE>
In the event that the Employee ceases to be employed by the Company,
for any reason or no reason, with or without Good Cause, including by reason of
death or disability, prior to any Vesting Date, that part of the Option
scheduled to vest on such Vesting Date, and all parts of the Option scheduled
to vest in the future, shall not vest and all of Employee's rights to and under
such non-vested parts of the Option shall terminate. Vested options shall not
be subject to forfeiture by the Employee under any circumstances, including,
without limitation, in the event that the Employee ceases to be employed by the
Company for any reason or no reason, including termination by the Employee.
4. Term of Option. To the extent vested, and except as otherwise
provided in this Agreement, the Option shall be exercisable for five (5) years
from the date of grant; provided, however, that in the event that Employee
ceases to be employed by the Company, for any reason or no reason, with or
without Good Cause, including by reason of death or disability, Employee or
Employee's legal representative shall have six (6) months from the date of such
termination of Employee's employment to exercise any part of the Option vested
pursuant to Section 3 of this Agreement. Upon the expiration of such six (6)
month period, or, if earlier, upon the expiration date of the Option as set
forth above, the Option shall terminate and become null and void.
5. Accelerated Vesting Upon a Change in Control.
Notwithstanding anything herein to the contrary, in the event that at any time
after the Effective Date the vesting of any restricted shares, options, SARs,
performance shares or other incentives granted under the Plan is accelerated
pursuant to Section 11.12 of the Plan, "Immediate Acceleration of Incentives,"
the Option shall immediately vest in full.
6. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised as provided in the
Plan.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date first above written.
CASINO DATA SYSTEMS,
a Nevada corporation
____________________________ By: _________________________________
Diana L. Bennett Its:_____________________________
2
<PAGE> 1
EXHIBIT 10.7
CASINO DATA SYSTEMS PROLIFIC PUBLISHING, INC.
LETTER OF INTENT
MULTIMEDIA GAMING SYSTEM
NOVEMBER 22, 1996
This agreement is entered into by and between CASINO DATA SYSTEMS, a Nevada
Corporation. and PROLIFIC PUBLISHING, INC., a California Corporation, for the
development of a Multimedia Gaming System and is effective as of the date set
forth above.
1. OBJECTIVE
CDS and Prolific shall jointly create and exploit a Multimedia Gaming
System for use in Casinos. This project involves providing three
distinct products: (1) a multimedia gaming device for game deployment
("Hardware"), (2) the content which includes the program code and the
related game concept, game play, art and sound ("Software"), and (3)
certain content production software tools ("Development Tools"). The
combined objective of CDS and Prolific is to develop a multimedia gaming
system that is profitable for casinos to operate.
2. DESCRIPTION OF THE MULTIMEDIA GAMING SYSTEM
A. HARDWARE.
The multi-media slot machine is a primary gaming device. By this it is
meant that the device is capable of accepting wagers, conducting a
pseudo-random game, determining the game outcome, displaying the game
outcome, and awarding an appropriate prize in money or credits.
The game device must be reliable and secure. All transactions
appurtenant to the game must be verifiable and auditable at the device.
It should be able to perform a wide range of self-diagnostics and keep a
maintenance log.
These devices should be able to operate stand-alone or in group play
either within a casino or as a part of a statewide linked system. The
linked capability should enable the bank of devices to leverage their
strength in communications, graphics and signage. This "linking" of
stand-alone devices is referred to as the "Networking Capability."
Page 1 of 14
<PAGE> 2
i. BLACK BOX
The multi-media slot machines are comprised of a game
assembly, game peripherals (mostly money handling), and game
electronics which are segregated into a game control
processor (Black Box) and a multi-media processor with
associated peripherals (White Box). This two processor
design is meant to provide secure game operations on a
verifiable platform while providing high-quality animation
and sound.
The Black Box is responsible for accepting wagers,
determining the outcome of a game, awarding jackpots,
dispensing money, security, accounting, and communications.
The Black Box is also responsible for monitoring the user
input devices (slot machine handle, buttons on the control
panel, and the other user inputs). The Black Box will be
contained in a locked enclosure and, to the extent possible,
optically isolated from the rest of the world.
ii. WHITE BOX
The White Box contains the multi-media processor board,
graphics board, CD quality stereophonic sound card, and
high-capacity storage media (magnetic hard disk or CD-ROM).
The CPU may execute from either RAM or EPROM.
Preliminary specifications for the White Box include a
minimum 60hz video refresh rate, 2D and/or 3D graphics in
hardware, 600 MB minimum program and data storage, 64MB
system memory, at least one implementation utilizing
unalterable storage media exclusively, and at least a 17"
high resolution monitor.
B. SOFTWARE.
Game content should take advantage of the multi-media device's
high-quality animation and sound capabilities. The game plots
should include both traditional games with enhanced game features
and new games born from the creativity and imagination of the
parties. Most important, the parties must attempt to create games
that are captivating and fun for the players and profitable for the
casino operators. The games must be produced in a manner that will
comply with all applicable regulatory rules, and/or enable or
assist the Hardware in achieving compliance.
The Project will require the development of 10 Software titles. A
minimum of four such titles must consist of unique game play and
game plots (e.g., Poker as
Page 2 of 14
<PAGE> 3
opposed to Blackjack) referred to in this document as "Foundational
Games." The remaining titles may be variations in theme or content
of the Foundational Games.
The games will be developed in three stages. The first stage will
include the development of three separate Foundational Games, based
upon well accepted gaming concepts and established games, enhanced
by the animation, sound and high quality art available through
multimedia ("First Iteration"). The second stage will include the
remainder of the titles, which will explore more diverse material,
new concepts and the application of multimedia to gaming ("Second
Iteration"). The third stage will include the addition of
Networking Capability to appropriate titles.
3. PROLIFIC'S OBLIGATIONS
Prolific shall design the White Box from off-the-shelf components of
various manufacturers. Prolific shall create a working prototype of the
White Box.
Prolific shall create an API for the White Box.
Prolific shall design, create and develop 10 Software titles, as
described in this document, and deliver them in final, market ready
condition, compatible with the White Box, to CDS.
4. CDS' OBLIGATIONS
CDS development responsibilities include providing the cabinetry, slot
peripherals and the Black Box. Additionally, CDS will provide
manufacturing of Hardware (both White Box and Black Box) and Software,
marketing, sales, service, support and advice to assist Prolific in
applying for and compliance with license process, gaming licenses for CDS
and Prolific, regulatory submittals and approvals, and capital.
5. DEVELOPMENT SCHEDULE
A. PRELIMINARY DEVELOPMENT
CDS shall deliver to Prolific, no later than November 30, 1996,
complete concepts for the three titles included in the First
Iteration. CDS shall deliver a working and complete Black Box to
Prolific immediately, and shall deliver a total of at least 20
Black Boxes in due course. The parties shall agree to final
specifications for the White Box no later than December 1, 1996.
By December 15, 1996, CDS will deliver to Prolific a mutually
acceptable design guide for the first three titles to be developed,
which guide will be a written description of the game play
expected, and an overview of the art of the games.
Page 3 of 14
<PAGE> 4
Prolific shall deliver a prototype of the White Box to CDS no later
than December 30, 1996, which prototype will also include
specifications, cs, and a complete bill of materials. All
White Box components must be second sourced. "Second Sourced" in
the context of this agreement means that as of December 30, 1996,
the item or part was available from at least two suppliers (as
opposed to manufacturers), but that there exists at least one
substitute part for the specified part, which is readily available
and can be used in the white box with no material loss of
functionality. The prototype need not have any regulatory
approvals by December 30, 1996.
By February 1, 1997, Prolific will deliver to CDS for review and
approval, an alpha version of each of the first three titles.
B. FIRST STAGE
Prolific shall deliver "demo" versions of the First Iteration
Software titles to CDS by no later than March 15, 1997. A "Demo"
version of a Software title consists of a functioning and
operational program sufficient to prove technical and artistic
concepts, display the program's "look and feel" and provide a
rendition of the program that showcases a pleasing "preview" of the
game. A "demo" need not contain all functionality or artwork, and
may be crippled in some way to provide security.
In the event that Prolific fails to deliver, by March 15, 1997,
preliminary versions of the first three titles which have at least
the attributes and state of completeness as the partial demo titles
displayed by Silicon Gaming at a show in Las Vegas in October,
1996, then CDS may elect to terminate this agreement in its
entirety. As to any other milestones or deadlines Prolific shall
be allowed at least a 30 day cure.
C. SECOND STAGE
Prolific shall deliver final versions of all the titles of First
Iteration Software and Second Iteration Software (without
Networking Capability) to CDS by no later than September 15, 1997.
It is anticipated that some titles will be completed prior to
September 15, 1997, and those will be promptly delivered to CDS.
D. THIRD STAGE
Prolific shall deliver final versions of all the titles of the
First Iteration Software and the Second Iteration Software,
complete with Networking Capabilities, to CDS by no later than
March 15, 1998.
Page 4 of 14
<PAGE> 5
E. TERMS
As used in this agreement, the following definitions shall apply:
i. ALPHA.
A milestone which occurs when proof of concept of all major
functions has been achieved, so that the key technology, including
inter-operability of functions, can be demonstrated in real time.
The "alpha" milestone also requires that the "look" and "feel" of
the game be demonstrated, albeit in a crude and incomplete way.
This milestone does not require that all or even most of the
features of the end program be installed, nor does it require that
art work, sound effects, music, opening sequences or any other
content related items be complete. Nor does this milestone require
that any function or feature be bug free. In terms of a video
game, key features that must be present and operating include all
display functions, sound functions, motion functions, collision
detection, basic interface operability and network or modem
capabilities.
ii. BETA.
A milestone that occurs when the majority of functions and features
are present and operating, but prior to the commencement of any
significant debugging. It does not require that all content
related matter be complete, or that any material to be supplied by
Publisher be included, but does require that a significant amount
of the artwork, including all artwork related to functionality, be
complete.
iii. "BUG" OR "MATERIAL DEFECT."
(A) any error in coding or logic that causes the Software to
malfunction, or to produce incorrect results, which malfunction or
incorrect results are recurring and which malfunction or incorrect
results causes either (i) the Software to cease to function, (ii)
the output to become severely distorted or to develop annoying
effects that interfere with gameplay, (iii) the Software to respond
incorrectly to controls in a manner that interferes with gameplay,
(iv) the Software to depart from the intended sequence of gameplay
in a manner that interrupts or curtails gameplay, (v) objects in
the game to fail to perform other than as intended in a manner that
substantially and adversely affects gameplay, (vi) output that is
inappropriate for the given input and which substantially and
adversely affects gameplay, (vii) any material failure to properly
interface with any related operating system software or related
hardware designs, or (viii) any material inability to perform
repeatedly and without interruption; (B) any misspelled or
incorrect text; (C) any hidden objects or displays that are
offensive to a significant portion of the public, are insulting or
demeaning to any racial, ethnic or religious group, particular sex
or persons of a particular sexual persuasion in a manner that
is direct
Page 5 of 14
<PAGE> 6
and gratuitous and is something other than a possible and
somewhat vague interpretation; or (D) any hidden object or displays
that have a substantial possibility of adversely affecting the
name, reputation or goodwill of the CDS; (E) any process or
function that materially violates any binding rule promulgated by
the licensor of a console-based operating system which rule
Prolific has been notified of within one (1) month of execution of
this Agreement, or, if not so notified, which rule would not
require more than two full programming days to correct. "Bugs" or
"Material Defects" must be reproducible, the exact conditions under
which they occur must be described, and the equipment on which they
occur must be available for inspection by Prolific during normal
business hours.
6. ARTISTIC CONTROL
Prolific will use its creativity and vision in developing the Software.
However, the parties acknowledge that Prolific has no experience in the
gaming industry (as opposed to the consumer software games industry), and
so CDS will play an integral role in developing concepts, and CDS will
advise Prolific concerning the needs and requirements of the gaming
industry throughout the development process. CDS shall have final
approval of all game concepts to be exercised reasonably, fairly, and
through the application of good business judgment, based upon an
assessment of the needs of the casino gaming industry, but in light of
existing and available technology.
7. PAYMENT
DEVELOPMENT FEE
CDS will pay to Prolific a "Development Fee" of Five Million, Six
Hundred Twenty-five Thousand Dollars ($5,625,000) for development
of the Software and White Box. An initial fee of Three Hundred
Forty-Five Thousand Dollars ($345,000) will be paid within
forty-eight hours of the execution of this agreement. The
remainder of the Development Fee shall be paid in monthly
increments, commencing on December 1, 1996, in the amounts in
accordance with the schedule set forth as Exhibit "A". Although
the Development Fee shall be paid in monthly increments, the
increments do not reflect the work produced, and the Development
Fee shall not be divisible. Should Prolific complete its
obligations prior to the established schedule it shall be entitled
to collect the entire Development Fee upon completion.
Page 6 of 14
<PAGE> 7
B. ROYALTIES
i. TITLES WITHOUT ROYALTY
The first three game titles delivered pursuant to this Agreement
shall be royalty free and CDS may use, publish and distribute such
titles without further financial obligation to Prolific.
ii. FIXED ROYALTIES
Initially, CDS shall pay to Prolific a royalty of Two Hundred
Thirty Dollars ($230.00) for each copy of a title published an/or
distributed singly by CDS for use in a gaming device, or a fee of
Sixty Dollars ($60.00) for each copy of a title published and/or
distributed by CDS, together with other titles for use in a gaming
device. The total royalty for a gaming device with multiple titles
shall not exceed Three Hundred Dollars ($300.00).
iii. PERCENTAGE ROYALTY - SALES OF GAMES
In a jurisdiction in which Prolific is granted the appropriate
license or approval, or if no license or approval is otherwise
required, Prolific will then receive in lieu of the Fixed Royalty,
a royalty of Twenty Percent (20%) of Gross Profit [Gross Profit is
defined as (Sales Price of Gaming Device x .89) minus Cost of
Assembled Goods] for each copy of a title published by CDS for use
in a gaming device, or Five Percent (5%) of Gross Profit for each
copy of a title published by CDS together with other titles for use
in a gaming device, but the total royalty paid for a gaming device
with multiple titles shall not exceed Twenty Percent (20%) of Gross
Profit. "Cost of Assembled Goods" for the purpose of this
paragraph shall include only the cost of labor and materials. The
meaning of "Titles" shall include derivative works of such Titles.
iv. PERCENTAGE ROYALTY - LINKED GAMES
In a jurisdiction in which Prolific is granted the appropriate
license or approval Prolific will then receive a royalty of Twenty
Percent (20%) of Gross Profit [Gross Profit is defined as (Total
Revenue of Linked System of Gaming Device x .89 minus (Cost of
Assembled Goods Plus Linked System Operation Cost)].
v. ROYALTY TO CDS
Should Prolific make any sale, lease or other use of the Software
as permitted by this Agreement, then CDS shall receive royalties in
an amount equal to 20 percent of the gross revenue received by
Prolific for any and all exploitation of the
Page 7 of 14
<PAGE> 8
Software produced pursuant to this agreement, or any derivative
works based thereon.
vii. PAYMENT OF ROYALTIES
Each party shall deliver to the other party quarterly royalty
statements not more than sixty days after the end of any calendar
quarter in which such royalties are earned. The quarterly royalty
statements shall report transactions and activity in detail. The
total royalty earned by any party in the relevant reporting period,
the amount of the Development Fee remaining to be recouped, if any,
by Prolific, and the total amount then owing to the receiving
party, if any, shall also be stated in such report.
Payment in full of amounts owing to any party are due and owing and
shall be paid at the same time as any such quarterly reports are
due.
C. TIMELY PAYMENTS
All payments shall be made in U.S. currency and delivered to the
party at the address set forth below by an established overnight
delivery service or better. Time is of the essence with regard to
any and all payments due and owing. Any payments made later than
fifteen days after they are due shall bear interest at the rate of
10% per annum or the highest rate of interest allowable by law,
whichever is less.
8. OWNERSHIP AND USE
A. PRIOR TO PAYMENT OF DEVELOPMENT FEE
Prior to full payment of the Development Fee, all Software,
including but not limited to the games, the API and the multimedia
game engine, and the Development Tools, shall be owned by Prolific.
All other materials, including but not limited to all Hardware,
shall be owned by CDS.
B. UPON PAYMENT OF DEVELOPMENT FEE
Upon full payment of the Development Fee, title to the game
concepts, game content and various elements of the code shall be
owned as follows:
i. full title to all game concepts, game content, and the API
shall pass to CDS. Full title to any Development Tools
created exclusively for use in the Casino Gaming Industry and
any Multimedia Game Engine created exclusively for use in the
Casino Gaming Industry shall pass to CDS;
Page 8 of 14
<PAGE> 9
ii. Prolific shall retain title to any elements of code, such as
routines, objects, Multimedia Game Engines, Development
Tools, or other portions or elements of code, that are used
by Prolific for the development of software generally, but
CDS shall be granted an irrevocable, non-exclusive,
non-transferable license to use any elements of code
contained in the Software, which elements are to be used
jointly, but which Software and or elements can only be used
by CDS in the Casino Gaming Industry;
iii. Prolific will be granted an irrevocable, non-exclusive,
license, exclusive of all other third party manufacturers,
developers and/or publishers, to exploit the Software or
other property transferred to CDS, including but not limited
to game concepts, content, elements of code, the API,
Development Tools and any Multimedia Game Engine as follows:
(1) in any application not within the casino gaming
industry, all rights of exploitation, including but not
limited to the right to manufacture, sell, market,
copy, and distribute the Software, and the right to
alter, change or otherwise make derivative works based
on the Software;
(2) in any application within the Casino Gaming Industry,
all rights necessary to create additional products,
including any derivative works. The use of such
additional products shall be limited to publication by
CDS, which limitation shall apply as long as CDS is
willing to and does in fact publish such works pursuant
to the terms of this Agreement.
iv. All other materials, including but not limited to all
Hardware, shall be owned by CDS,
v. It is the intent of the parties that CDS shall have all
rights needed for it to support the Software, and develop,
produce and distribute additional game titles in the Casino
Gaming Industry, but not allow any other party to develop
software using the Software produced by Prolific (unless
Prolific has ceased to develop software). It is the intent
of the parties that as a result of transfer of ownership of
the Software to CDS, Prolific will not be harmed in
developing additional software for CDS in the Casino Gaming
Industry or any software outside the Casino Gaming Industry.
Therefore, the parties agree that as to any software or
element or part thereof included in the Software developed
pursuant to this Agreement or used to create the Software
developed pursuant to this Agreement, any party not having
ownership of such software shall have, at a minimum, an
irrevocable, non-exclusive, non-transferable license to
exploit such software or element thereof.
Page 9 of 14
<PAGE> 10
C. USE OF SOFTWARE
CDS may use the Software to develop any gaming title that Prolific,
after first review, is unable or unwilling to develop to the
specifications of CDS and therefore Prolific shall have a right of
first look to develop any gaming title contemplated by CDS using
the Software. For so long as Prolific is not in breach of this
Agreement, but in no event for a period in excess of five (5) years
after payment of the Development Fee, CDS will offer to Prolific a
right of first refusal to publish and distribute any non-gaming CDS
title or concept which utilizes the Software with an appropriate
royalty to CDS. If Prolific neither publishes nor distributes an
offered non-gaming title, CDS may utilize other parties for
publication and distribution, without royalty, payment or
consideration to CDS.
Prolific shall have the right to develop gaming titles utilizing
the Software, but such titles may only be published and distributed
with the sole consent of CDS, which consent may be withheld for any
reason. There are no restrictions on Prolific's use of the
Software for non-gaming titles.
9. REPRESENTATIONS BY PROLIFIC
Prolific makes representations and warranties customary in software
development agreements, including but not limited to the following: (i)
Prolific is financially sound and technically capable of performing its
obligations; (ii) the Software will not infringe upon any copyright,
trademark, patent right, trade secret or other proprietary right of any
third party; (iii) the performance of Prolific's obligations will not
breach any other contract by which Prolific is bound; and (iv) Prolific
has the right to fulfill its obligations hereunder. Prolific further
warrants and represents that the quality of the titles delivered, whether
in alpha, beta, demo or final, shall meet or exceed the state of the art
in comparable video gaming devices then available in the marketplace
(except where specified otherwise), and Prolific agrees that at the time
of the execution of this agreement that the state of the art in the
industry is represented in the products developed and provided by Silicon
Gaming (except where specified otherwise).
10. DESIGNATION OF PARTICIPANTS
Prolific shall designate the employees working on the project, and
deliver a written statement to CDS containing such designation not later
than January 15, 1997.
11. REPRESENTATIONS BY CDS
CDS will make a diligent, good faith effort to market the Hardware and
Software. CDS makes no representations or warranty, however, that any
product will be successfully marketed or that any minimum level of sales
or licensing will be achieved.
Page 10 of 14
<PAGE> 11
12. CONTINUED RELATIONSHIP
A. The parties agree that it is reasonable, prudent and a business
necessity that this Agreement shall have certain continuing obligations
which will require an ongoing relationship between the parties, and
pursuant to a right of first review or refusal, the opportunity for
additional titles for development, publication, manufacture and
distribution.
B. For a period of five (5) years commencing in 1998, CDS agrees it
will provide to Prolific at least seven (7) new game/title concepts per
calendar year for review, and will advance to Prolific fees (in an amount
equal to the projected costs of the project plus fifty percent) for the
development of at least three (3) titles per year (selected by Prolific
from the seven concepts advanced by CDS).
C. CDS may develop internally or acquire from a third party, a game
concept or developed title, but will offer to Prolific the right to
develop or publish the title, pursuant to this Agreement. All reasonable
costs or expenses, including royalties, paid or expended for a third
party product shall be included as part of the cost of assembled goods
sold.
D. For a period of five (5) years commencing in 1998, Prolific agrees
it will offer to CDS at least two (2) developed titles in each calendar
year beginning 1998, for which Prolific shall bear the development costs.
These titles would be in addition to those set forth in Paragraph 12(B).
Prolific will have the option of developing at least one (1) additional
Casino Gaming title at the expense of Prolific, which CDS agrees to
manufacture, publish, market, distribute and sell.
E. The royalty paid to Prolific for any additional Software produced
for CDS, which work is commenced prior to January 1, 2003, (other than
the seven (7) games of the Second Iteration called out in this Agreement)
shall be that set forth in this Agreement for all Software after the
first three games of the First Iteration.
F. CDS will not be restricted in its ability to develop internally or
through third parties, alternate game platforms or white boxes, which
will not utilize the White Box or the Software. Should CDS develop an
alternate game platform or white box internally, CDS will grant Prolific
the necessary rights to develop Software for such platform, for a period
of five years commencing in 1997, on the terms set forth in this
Agreement. Should CDS acquire an alternate game platform or white box
from a third party, CDS will use it best efforts to allow Prolific the
opportunity to develop titles for use with any alternate game platforms
or white boxes, for a period of five years commencing in 1997.
G. CDS agrees that it will not discriminate in any manner between
software produced in-house and software produced by Prolific, and CDS
further agrees that it will use the same efforts to market Prolific
software as it uses to market software it produces in-house.
Page 11 of 14
<PAGE> 12
H. The parties agree that neither party shall solicit or hire without
consent of the other party, any employee of the other.
13. CONFIDENTIALITY
This agreement and the project it concerns are confidential. Each party
shall use its best reasonable efforts to keep this agreement, the project
and all confidential and proprietary information of the other party
confidential. The existence of the Project, but not any trade secrets
concerning the project, may be disclosed after the first public
disclosure of the project by CDS. The existence of the agreement and the
financial details, but not any trade secrets concerning the project, may
be disclosed by either party to its attorneys, accountants, lenders,
bankers, shareholders or investors, but only when a significant business
reason or regulatory compliance requirement for disclosure exists and the
parties use reasonable efforts to keep such third parties from disclosing
such information.
14. LOCATION
The parties agree that all work on the Multimedia Gaming System shall be
performed at a location to be established by Prolific Publishing, Inc. in
the San Francisco Bay Area/Silicon Valley Area, and/or Prolific
Publishing, Inc.'s already established "Silliwood" location.
15. GOOD FAITH
Prolific warrants and represents to CDS that all acts, duties and
obligations required of it under this agreement shall be performed in
good faith. CDS warrants and represents to Prolific that all acts,
duties and obligations required of it under this Agreement shall be
performed in good faith.
16. LOGOS AND CREDITS
Unless otherwise restricted or prohibited by regulatory authorities, the
logos of CDS and Prolific will appear on the product CDS' and Prolific
Publishing, Inc.'s. logo will also appear in the splash screens of the
Product.
17. ENTIRE AGREEMENT
The Letter of Intent sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof and supersedes all
prior and contemporaneous agreements, negotiations, and understandings
between the parties, both oral and written.
Page 12 of 14
<PAGE> 13
18. GOVERNING LAW
This Agreement will be governed by and construed under the laws of the
State of California, excluding that body of law related to choice of
laws, and of the United States of America.
19. NOTICES
All notices to either party shall be sent by facsimile transmission or
overnight mail to the other party at the address set forth below, or such
other address as either party shall designate in writing:
CASINO DATA SYSTEMS PROLIFIC PUBLISHING, INC.
3300 Birtcher Drive 706 West Broadway, Suite 300
Las Vegas, Nevada 89116 Glendale, California 91204
Attn: Russell C. Mix Attn: Charles D. Lombino
20. SEVERABILITY
Should any provision of this Agreement be determined by a competent
tribunal or regulatory body to be invalid, void, illegal or otherwise
unenforceable then the offending provision will be enforced or modified
to the extent possible and consistent with the intent of the parties, or,
it incapable of such enforcement, will be deemed to be deleted from this
Agreement. while the remainder of this Agreement will continue in full
force and remain in effect according to its stated terms and conditions.
21. BINDING AGREEMENT
This agreement shall be binding on the parties, their successors,
assigns, subsidiaries and sister companies. The parties contemplate
preparing a more thorough and detailed agreement, and should such further
agreement be prepared and fully executed, it will supersede this
agreement.
22. FORCE MAJEURE
Neither party will be deemed in default of this Agreement to the extent
that performance of their respective obligations or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, act of government, shortages of materials or
supplies, or any other cause beyond the reasonable control of such party;
provided, that such party gives the other party written notice thereof
within ten (10) working days of discovery thereof. In the event of such
a Force Majeure, the time for performance or cure will be extended for a
period equal to the duration of the Force Majeure.
Page 13 of 14
<PAGE> 14
23. TERM OBLIGATIONS; THIRD PARTY INTERFERENCE; DELAYS.
Neither party will be deemed in default of this agreement to the extent
that performance of their respective obligations or attempts to cure any
breach are delayed or prevented by reason of any problem with third party
software or hardware not caused by the party, or by reason of any change
to the specifications or addition to the specifications which change or
addition is requested by the other party. In the event of any change or
addition, should the change or addition or plan therefore require more
than one days work than the party performing the work shall be entitled
to additional compensation, as agreed by the parties. In the event of
any delay caused by factors described in this subsection, time for
performance will be extended commensurately with the delay.
24. COUNTERPARTS.
This agreement may be executed in counterparts. A facsimile transmission
shall be binding as if it were the original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective the date first mentioned above.
CASINO DATA SYSTEMS
Dated: 11/22/96, 1996 By: /s/ Russell C. Mix
---------------- ------------------------
PROLIFIC PUBLISHING, INC.
Dated: 11/22/96, 1996 By: /s/ Charles D. Lombino
---------------- ------------------------
Page 14 of 14
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS CONSENT
The Board of Directors
Casino Data Systems:
We consent to incorporation by reference in the registration statements (No.
33-62108), (No. 33-84236) and (No. 33-97386) on Form S-8 of Casino Data Systems
of our report dated March 24, 1997, relating to the consolidated balance sheets
of Casino Data Systems and subsidiaries as of December 31, 1996 and 1995, and
the related consolidated statements of operations, shareholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
1996, which report appears in the December 31, 1996 annual report on Form 10-K
of Casino Data Systems.
/s/ KPMG Peat Marwick LLP
Las Vegas, Nevada
March 31, 1997
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<PERIOD-START> JAN-01-1996
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<CASH> 21,482,173
<SECURITIES> 6,802,259
<RECEIVABLES> 30,550,377
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<TOTAL-LIABILITY-AND-EQUITY> 125,422,344
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