<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CASINO DATA SYSTEMS
(Exact name of registrant as specified in its charter)
Nevada 88-0261839
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation)
3300 Birtcher Drive
Las Vegas, Nevada 89118
(Address of principal executive offices)
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of Plan)
Bruce W. Benson, Esq.
Casino Data Systems
3300 Birtcher Drive
Las Vegas, Nevada 89118
(702) 269-5000
(Name, address and telephone number of agent for service)
Copies to:
Philip J. Tilton, Esq.
Maslon Edelman Borman & Brand, LLP
3300 Norwest Center
Minneapolis, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE PRICE(1) REGISTRATION FEE
---------------------- ---------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
common stock,
no par value 500,000 $1.875 $937,500 $276.56
</TABLE>
============================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act based upon a $1.875 per share
average of high and low sales prices of the Registrant's common stock on the
Nasdaq National Market on September 11, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(1) The contents of the Registrant's Form 10-K for the fiscal year
ended December 31, 1997 and the amendment thereto on Form 10-K/A filed April 30,
1998.
(2) The contents of the Registrant's Form 10-Q for the first quarter
ended March 31, 1998 and the Registrant's Form 10-Q for the second quarter ended
June 30, 1998.
(3) The contents of the Registrant's Schedule 14-A and Definitive Proxy
Statement filed July 6, 1998.
(4) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act and all amendments thereto and reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers.
Sections 78.751 and 78.752 of the General Corporation Law of Nevada read as
follows:
78.751 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
ADVANCEMENT OF EXPENSES.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
II-1
<PAGE> 3
proceeding, has no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
4. Any indemnification under subsections 1 and 2, unless ordered by a
court or advanced pursuant to subsection 5, must be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal counsel
in a written opinion; or
II-2
<PAGE> 4
(d) If a quorum consisting of directors who were not parties to the
act, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
5. The certificate or articles of incorporation, the bylaws or an
agreement made by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do not affect
any rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
6. The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the certificate
or articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to subsection 2 or for the
advancement of expenses made pursuant to subsection 5, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
78.752 INSURANCE AND OTHER FINANCIAL ARRANGEMENTS AGAINST LIABILITY OF
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
1. A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
II-3
<PAGE> 5
(c) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable for intentional misconduct,
fraud or a knowing violation of law, except with respect to the advancement of
expenses or indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the corporation or any other
person approved by the board of directors, even if all or part of the other
person's stock or other securities is owned by the corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section and the choice of the person to provide the insurance
or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to personal
liability for his action, even if a director approving the insurance or other
financial arrangement is a beneficiary of the insurance or other financial
arrangement.
5. A corporation or its subsidiary which provides self-insurance for
itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of NRS.
Article Fifth of the registrant's Articles of Incorporation reads as
follows:
FIFTH: No Director or Officer of this Corporation shall be liable to
the Corporation or its stockholders for any breach of fiduciary duty as Officer
or Director of the Corporation. This provision shall not affect liability for
acts or omissions which involve intentional misconduct,fraud, a knowing
violation of law, or the payment of dividends in violation of NRS 78.300.
All expenses incurred by Officers or Directors in defending a civil or
criminal action, suit, or proceeding, must be paid by the Corporation as they
are incurred in advance of a final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of a Director or
Officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction, that he or she did not act in good faith, and in the
manner he or she
II-4
<PAGE> 6
reasonably believed to be or not opposed to the best interests
of the Corporation.
A policy of directors' and officers' insurance is maintained by the
registrant under which the directors and officers of the registrant will be
insured, within the limits and subject to the limitations of the policy, against
certain expenses in connection with the defense of actions, suits or proceedings
to which they are parties by reason of being or having been such directors or
officers.
Item 8. Exhibits.
5 Opinion of Maslon Edelman Borman & Brand, LLP
23(1) Consent of KPMG Peat Marwick LLP
23(2) Consent of Maslon Edelman Borman & Brand, LLP (included in
Exhibit 5).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
II-5
<PAGE> 7
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-6
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Las Vegas, State of Nevada, on September 16, 1998.
CASINO DATA SYSTEMS
By: /s/ Howard W. Yenke
-------------------------
Howard W. Yenke
Its: Chief Executive Officer
(Principal Executive Officer)
By: /s/Lee Lemas
-------------------------
Lee Lemas
Its: Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on the 16th day of September, 1998
by the following persons in the capacities indicated:
Signature Title
- ------------------------------------ -----------------------------------
/s/ Steven A. Weiss Chairman of the Board and
- ------------------------------------ Director
Steven A. Weiss
/s/ Howard W. Yenke Chief Executive Officer and
- ------------------------------------ Director
Howard W. Yenke
/s/ Diana L. Bennett President, Chief Operating
- ------------------------------------ Officer and Director
Diana L. Bennett
II-7
<PAGE> 9
/s/ Phil E. Bryan Director
- ------------------------------------
Phil E. Bryan
/s/ Thomas E. Gardner Director
- ------------------------------------
Thomas E. Gardner
II-8
<PAGE> 1
EXHIBIT 5
September 15, 1998
Casino Data Systems
3300 Bircher Drive
Las Vegas, Nevada 89118
RE: REGISTRATION STATEMENT ON FORM S-8 (THE "REGISTRATION
STATEMENT")
Gentlemen:
We have acted as counsel for Casino Data Systems (the "Company") in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act") of 500,000 shares of the Company's common stock, no par
value (the "Common Stock") issuable under the Company's 1998 Employee Stock
Purchase Plan (the "Plan") and, subject to adjustment as provided therein, under
the Registration Statement on Form S-8 proposed to be filed with the Securities
and Exchange Commission.
We have made such legal and factual examinations and inquiries, including
an examination of originals, or copies certified or otherwise identified to our
satisfaction as being true reproductions of originals, of all such corporate
records of the Company, agreements and other instruments, certificates of public
officials and officers and representatives of the Company, and such other
documents as have deemed necessary as a basis for the opinions hereafter
expressed.
Without limiting the generality of the foregoing, in our examination, we
have assumed without independent verification, that (i) each of the parties
thereto has duly and validly executed and delivered each instrument, document
and agreement to which such party is a signatory, and such party's obligations
set forth therein are its legal, valid, and binding obligations, enforceable in
accordance with their respective terms, (ii) each natural person executing any
such instrument, document or agreement is legally competent to do so, and (iii)
all corporate records made available to us by the Company and all public records
reviewed are accurate and complete.
Based upon the foregoing and having regard to legal considerations that we
deem relevant, we are of the opinion that, when the shares of Common Stock have
been registered under the Securities Act, and when the Company has received the
consideration to be received for said shares in accordance with the provisions
of the Plan and said shares of Common Stock have been issued by the Company as
provided under the Plan, said shares of Common Stock will be duly authorized,
validly issued, fully paid, and nonassessable.
<PAGE> 2
We are qualified to practice law in the State of Minnesota. The opinions
set forth herein are expressly limited to the laws of the State of Minnesota and
we do not purport to be experts on, or express any opinion herein concerning any
laws other than the laws of the State of Minnesota. We express no opinion
concerning, and we assume no responsibility as to laws or judicial decisions
related to, or any orders, consents, or other authorizations or approvals as may
be required by, any federal law, including any federal securities law, or any
state securities or blue sky laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm therein.
Very truly yours,
/s/ Maslon Edelman Borman & Brand, LLP
<PAGE> 1
EXHIBIT 23(1)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Casino Data Systems:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
Las Vegas, Nevada
September 11, 1998
