<PAGE>
As filed with the Securities and Exchange Commission
on July 2, 1996
File No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MIKOHN GAMING CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 88-0218876
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1045 Palms Airport Drive, P.O. Box 98686, Las Vegas, Nevada 89193-8686
(Address of Principal Executive Offices) (Zip Code)
Mikohn Gaming Corporation Stock Option Plan, as Amended
Mikohn Gaming Corporation Director Stock Option Plan, as Amended
(Full title of the plans)
CHARLES H. MCCREA, JR., ESQ.
1045 Palms Airport Drive, P.O. Box 98686, Las Vegas, Nevada 89193-8686
(Name and address of agent for service)
(702) 896-3890
(Telephone number including area code, of agent for service)
Please send copies of all correspondence to:
MARK R. MOSKOWITZ, ESQ.
Hughes Hubbard & Reed
350 South Grand Avenue, 36th Floor
Los Angeles, CA 90071-3442
(213) 613-2800
<TABLE>
<CAPTION>
=====================================================================================================
Title of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,100,000 shares(1) $8.625(2) $9,487,500 $3,272.00
$.10 Par Value
=====================================================================================================
</TABLE>
(1) Includes an indeterminable number of shares which may be issued as a
result of anti-dilution provisions set forth in each of the stock option
plans to which this Registration Statement relates.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based upon the average of the high and low prices of
the Registrant's Common Stock as reported on the Nasdaq/National Market
System on June 27, 1996.
<PAGE>
MIKOHN GAMING CORPORATION
EXPLANATORY NOTE
This Registration Statement relates to certain amendments of the Mikohn
Gaming Corporation Stock Option Plan and the Mikohn Gaming Corporation Director
Stock Option Plan (collectively, the "Plans") that increased the aggregate
number of shares of common stock authorized for issuance thereunder from 700,000
to 1,700,000 and from 50,000 to 150,000, respectively. The 750,000 shares
originally authorized for issuance under the Plans have already been registered
pursuant to a Registration Statement on Form S-8 (File No. 33-73506), which was
filed with the Securities and Exchange Commission (the "Commission") on December
29, 1993 (the "1993 Registration Statement"). This Registration Statement,
therefore, relates to the remaining 1,100,000 shares that may be issued pursuant
to such Plans. The contents of the 1993 Registration Statement are hereby
incorporated by reference. The Items below contain information required in this
Registration Statement that was not included in the 1993 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Commission:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, including the portions of the Registrant's definitive
proxy statement for its 1996 Annual Meeting of Stockholders incorporated by
reference into such Annual Report; and
(b) the description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A which was filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"),
II-2
<PAGE>
on November 2, 1993, and any amendment or report filed with the Commission for
the purpose of updating such description.
All documents filed with the Commission by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and 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. Any statement contained herein or in a document, all
or a portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Subsection 1 of Section 78.751 of the Nevada General Corporation Law
(the "Nevada Law") empowers a corporation to 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 (other than 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 or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with
II-3
<PAGE>
respect to any criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful.
Subsection 2 of Section 78.751 empowers a corporation to 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 such
person acted in any of the capacities set forth above against expenses,
including amounts paid in settlement and attorneys' fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under standards similar to those set forth above,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged 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 such action or suit was brought determines
that despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Section 78.751 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (1) and (2) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided for by Section 78.751 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled; that indemnification, unless ordered by the court or for the
advancement of certain expenses, 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; and that the scope of indemnification shall
continue as to directors, officers, employees or agents who have ceased to hold
such positions, and to their heirs, executors and administrators.
Section 78.752 of the Nevada Law empowers the corporation to purchase
and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by him in
any such capacity or arising out of his status as such whether or not the
II-4
<PAGE>
corporation would have the power to indemnify him against such liabilities under
Section 78.751.
The Articles of Incorporation and Bylaws of the Registrant provide for
indemnification of its officers and directors, substantially identical in scope
to that permitted under Section 78.751 of the Nevada Law. The Bylaws provide
that the expenses of officers and directors incurred in defending any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
must be paid by the Registrant 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 all amounts so advanced if it
is ultimately determined by a court of competent jurisdiction that the officer
or director is not entitled to be indemnified by the Registrant.
The Registrant has entered into indemnification agreements with
certain of its directors and officers that require the Registrant to indemnify
such director and officers to the fullest extent permitted by applicable
provisions of Nevada law, subject to amounts paid by insurance.
Each of the stock option plans to which this Registration Statement
relates requires the Registrant to indemnify its directors against liabilities
which may be incurred in connection with the administration of the stock option
plans, other than liabilities that result from the negligence, bad faith,
willful misconduct or criminal acts of such directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
Item 8. EXHIBITS.
--------
4.1 Articles of Incorporation, as amended.
4.2 Amended and Restated Bylaws.
4.3 Mikohn Gaming Corporation Stock Option Plan, as amended.
4.4 Mikohn Gaming Corporation Director Stock Option Plan, as amended.
II-5
<PAGE>
4.5 Specimen Common Stock Certificate. Incorporated by reference to
Exhibit 4 to Amendment No. 3 to the Registration Statement on
Form S-1 (No. 33-69076) filed by the Registrant under the
Securities Act of 1933, as amended.
5.1 Opinion of Charles H. McCrea, Sr., Esq.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Charles H. McCrea, Sr., Esq. (contained in Exhibit
5.1).
24.1 Power of Attorney (see page S-1). Not applicable.
Item 9. UNDERTAKINGS.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii)
do not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-6
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 the 2nd day of
July, 1996.
MIKOHN GAMING CORPORATION
By: /s/ David J. Thompson
--------------------------------
David J. Thompson
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David J. Thompson and Terrance W. Oliver, or
either of them, jointly and severally, his true and lawful attorneys-in-fact and
agents, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- -----
/s/DAVID J. THOMPSON Chairman of the Board, Chief July 2, 1996
- ----------------------------- Executive Officer and Chief
DAVID J. THOMPSON Financial Officer (principal
executive, financial and
accounting officer)
S-1
<PAGE>
/s/RICHARD M. IRVINE Director July 2, 1996
- -----------------------------
RICHARD H. IRVINE
/s/DENNIS A. GARCIA Director July 2, 1996
- -----------------------------
DENNIS A. GARCIA
/s/BRUCE E. PETERSON Director July 2, 1996
- -----------------------------
BRUCE E. PETERSON
/s/TERRANCE W. OLIVER Director July 2, 1996
- -----------------------------
TERRANCE W. OLIVER
/s/JOHN K. CAMPBELL Director July 2, 1996
- -----------------------------
JOHN K. CAMPBELL
/s/DOUGLAS M. TODOROFF Director July 2, 1996
- -----------------------------
DOUGLAS M. TODOROFF
S-2
<PAGE>
EXHIBIT INDEX
Sequentially
Numbered Page
-------------
4.1 Articles of Incorporation, as amended...................
4.2 Amended and Restated Bylaws.............................
4.3 Mikohn Gaming Corporation Stock Option Plan,
as amended..............................................
4.4 Mikohn Gaming Corporation Director Stock Option
Plan, as amended........................................
4.5 Specimen Common Stock Certificate. Incorporated
by reference to Exhibit 4 to Amendment No. 3 to the
Registration Statement on Form S-1 (No. 33-69076)
filed by the Registrant under the Securities Act of
1933, as amended........................................
5.1 Opinion of Charles H. McCrea, Sr., Esq..................
23.1 Consent of Deloitte & Touche LLP........................
23.2 Consent of Charles H. McCrea, Sr., Esq.
(contained in Exhibit 5.1)..............................
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
OF
MIKOHN GAMING CORPORATION
The undersigned, being the President and Secretary of MIKOHN GAMING
CORPORATION, a Nevada corporation, declares that the original Articles of
Incorporation of the Corporation were filed with the Secretary of State of the
State of Nevada on May 27, 1986 and with the Clerk of the County of Clark on
June 4, 1986. I certify as follows:
1. That on September 24, 1993, the Directors of the Corporation, by
unanimous consent, adopted and consented to the adoption of resolutions setting
forth proposed Amended and Restated Articles of Incorporation of the
Corporation, as hereinafter set forth, declaring the advisability thereof, and
calling a meeting of the shareholders for the purpose of considering and voting
upon the proposal.
2. The resolution called for the following Amended and Restated
Articles of Incorporation:
ARTICLE 1
NAME
The name of the Corporation is MIKOHN GAMING CORPORATION.
. . . .
. . . .
. . . .
. . . .
Page 1 of 6
<PAGE>
ARTICLE 2
[AMENDED]
RESIDENT AGENT AND REGISTERED OFFICE
The name of the resident agent of the Corporation, a corporate
resident of the State of Nevada, whose business address is 1700 Bank of
America Plaza, 300 South Fourth Street, Las Vegas, Clark County, Nevada
89101 is LIONEL SAWYER & COLLINS.
ARTICLE 3
[AMENDED]
AUTHORIZED SHARES AND ASSESSMENT OF SHARES
Section 3.01. Authorized Shares. The aggregate number of shares that
-----------------
the Corporation shall have the authority to issue is 20,000,000 shares of
Common Stock with a par value of $.10 per share and 5,000,000 shares of
Preferred Stock with a par value of $.10 per share.
Section 3.02. Rights and Restrictions of Preferred Stock. The
------------------------------------------
Preferred Stock may be made subject to redemption at such time or times and
at such price or prices, and may be issued in such series, with full or
limited voting powers, or without voting powers and with such designations,
preferences, and relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
stock adopted by the Board of Directors.
Without limiting the foregoing:
(a) The holders of Preferred Stock or any class or series
thereof shall be entitled to receive dividends at such rates, on such
conditions and at such times as shall be expressed in the resolution or
resolutions providing for the issue of such stock adopted by the Board of
Directors, payable in preference to, or in such relation to, the dividends
payable on any other class or classes of stock, and cumulative or
noncumulative as shall be so expressed.
(b) The holders of the Preferred Stock or any class or series
thereof shall be entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the corporation as shall be stated and
Page 2 of 6
<PAGE>
expressed in the resolution or resolutions providing for the issue of such
stock adopted by the Board of Directors.
(c) Any Preferred Stock or any class or series thereof, if there
are other classes or series, may be made convertible into, or exchangeable
for, shares of any other class or classes or of any other series of the
same or any other class or classes of stock of the corporation at such
price or prices or at such rates of exchange and with such adjustments as
shall be stated and expressed in the resolution or resolutions providing
for the issue of such stocks adopted by the Board of Directors.
Section 3.03. Assessment of Shares. The capital stock of the
--------------------
Corporation, after the amount of subscription price has been paid, shall
not be subject to pay the debts of the Corporation, and no capital stock
issued as fully paid up shall ever be assessable or assessed.
Section 3.04. Denial of Preemptive Rights. No stockholder of the
---------------------------
Corporation shall have any preemptive or other right, by reason of his
status as a stockholder, to acquire any unissued shares, treasury shares,
or securities convertible into shares of the Stock of the Corporation.
This denial of preemptive rights shall, and is intended to, negate any
rights which would otherwise be given to stockholders pursuant to NRS
78.265 or any successor statute.
Section 3.05. Meetings. Stockholders' meetings shall be called and
--------
noticed only as provided in the Bylaws of the Corporation.
Section 3.06. Amendments. The affirmative vote of at least 80% of
----------
the combined voting power of the then outstanding shares of stock entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to alter, amend, adopt any provision inconsistent
with, or repeal this Article 3.
ARTICLE 4
[AMENDED]
DATA RESPECTING DIRECTORS
Section 4.01 Style of Governing Board. The members of the governing
------------------------
board of the Corporation shall be styled Directors. The names and
addresses of the Directors are:
Page 3 of 6
<PAGE>
David J. Thompson
6700 South Paradise Road, Suite E
Las Vegas, Nevada 89119
Terrance W. Oliver
P.O. Box 40130
Reno, Nevada 89504-4130
Section 4.02 Increase or Decrease of Directors. The number of
---------------------------------
Directors of the Corporation may be increased or decreased from time to
time as shall be provided in the Bylaws of the Corporation.
Section 4.03 Nominations. The Bylaws of the Corporation shall
-----------
provide the procedures for nominating Directors and only Directors so
nominated shall be elligible to serve.
ARTICLE 5
[AMENDED]
LIABILITY OF DIRECTORS AND OFFICERS
No Director or officer shall have any personal liability to the
Corporation or its stockholders for damages for breach of fiduciary duty as
a Director or officer, except that this Article FIVE shall not eliminate or
limit the liability of a Director or officer for (i) acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law,
or (ii) the payment of distributions in violation of Section 78.300 of the
Nevada Revised Statutes. If the Private Corporations law of Nevada is
hereafter amended or interpreted to eliminate or limit further the personal
liability of Directors or officers, then the liability of all Directors and
officers shall be eliminated or limited to the full extent then so
permitted. Any repeal of this Article 5 shall be prospective only. In the
event of any conflict between this Article 5 and any other Article of the
Corporation's Articles of Incorporation, the terms and provisions of this
Article 5 shall control.
ARTICLE 6
[AMENDED]
ELECTION NOT TO BE GOVERNED BY CORPORATE COMBINATIONS ACT
The Corporation hereby elects not to be governed by NRS 78.411 through
NRS 78.444.
Page 4 of 6
<PAGE>
ARTICLE 7
[AMENDED]
ELECTION NOT TO BE GOVERNED BY ANTI-TAKEOVER ACT
The Corporation hereby elects not to be governed by NRS 78.378 through
NRS 78.3793.
ARTICLE 8
[AMENDED]
PURPOSE
The purposes for which the corporation is organized are: (a) to
conduct gaming in the State of Nevada in accordance with the laws of the
State of Nevada and the United States of America; (b) to conduct gaming in
other states in accordance with the laws of such other states and the
United States of America; (c) to conduct gaming in jurisdictions outside
the United States of America in accordance with the laws of such
jurisdictions; and (d) to engage in any other lawful activity.
3. That on September 24th, 1993, the shareholders of the
corporation, by unanimous consent with notice and written consent given pursuant
to Section 78.320, adopted and consented to the adoption of a resolution
setting forth the proposed amended and restated Articles of Incorporation as
hereinabove set forth.
4. That the Articles of Incorporation of MIKOHN GAMING CORPORATION
are hereby amended and restated as set forth above and
. . . .
. . . .
. . . .
. . . .
. . . .
. . . .
the undersigned makes this certificate pursuant to Sections 78.385
Page 5 of 6
<PAGE>
and 78.390 of the Nevada Revised Statutes.
DATED this 27th day of September, 1993.
S/ DAVID J. THOMPSON
___________________________________
David J. Thompson, President
S/ DAVID J. THOMPSON
___________________________________
David J. Thompson, Secretary
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On September 27th, 1993, personally appeared before me, a Notary
Public, DAVID J. THOMPSON, who acknowledged to me that he executed the foregoing
Certificate of Amendment of Articles of Incorporation of MIKOHN GAMING
CORPORATION.
S/ MYRNA R. HOGAN
____________________________________
NOTARY PUBLIC
NOTARY PUBLIC
[SEAL] STATE OF NEVADA
County of Clark
MYRNA R. HOGAN
My Appointment Expires May 27, 1997
Page 6 of 6
<PAGE>
ENDORSEMENT ON PAGE 1 (OBVERSE):
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
SEP 29 1993
CHERYL A. LAU SECRETARY OF STATE
S/ CHERYL A LAU
NO. 3599-86
------------------
ENDORSEMENT ON PAGE 6 (REVERSE):
STATE OF NEVADA
DEPARTMENT OF
STATE
I HEREBY CERTIFY THAT THIS IS A TRUE
AND COMPLETE COPY OF THE DOCUMENT
AS FILED IN THIS OFFICE.
DATED: SEP 29 1993
-----------
S\ CHERYL A. LAU
SECRETARY OF STATE
BY S/ KIMBERLY DEVIUS
----------------------------
/ENDORSMT.002/
7
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
of
MIKOHN GAMING CORPORATION
The undersigned, being the President and Secretary, respectively of MIKOHN
GAMING CORPORATION, a Nevada corporation (the "Corporation") hereby certify as
follows:
1. That on December 7, 1994, the Board of Directors of the Corporation
unanimously adopted resolutions approving a proposed Amendment to the Articles
of Incorporation of the Corporation, and directed that said Amendment be
submitted to stockholders of the Corporation for consideration at the 1995
Annual Meeting of Shareholders.
2. The resolutions so adopted are the following:
RESOLVED, that the Articles of Incorporation be amended to eliminate
Section 3.06 of Article 3, which presently reads as follows:
Section 3.06. Amendments. The affirmative vote of at least 80% of the
combined voting power of the then outstanding shares of stock entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend, adopt any provision inconsistent with, or repeal,
this Article 3.
RESOLVED FURTHER, that the proposed Amendment to the Articles of
Incorporation be presented for vote by the shareholders at the 1995 annual
meeting.
3. That on May 9, 1995, a total of 7,928,850 (or 80.9%) of the
Corporation's 9,802,611 authorized and outstanding shares of
8
<PAGE>
stock, at the duly called, noticed and held 1995 Annual meeting of Shareholders,
adopted the resolutions setting forth the proposed Amendment to the Articles of
Incorporation as set forth above.
4. That the Articles of Incorporation of MIKOHN GAMING CORPORATION are
hereby amended as set forth above and that the undersigned make this certificate
pursuant to Sections 78.385 and 78.390 of the Nevada Revised Statutes.
DATED: May 15, 1995.
S/ DAVID J. THOMPSON
-------------------------
David J. Thompson
President
S/ CHARLES H. McCREA, JR.
-------------------------
Charles H. McCrea, Jr.
Secretary
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
This instrument was acknowledged before me on May 15, 1995, by David J.
Thompson as President and Charles H. McCrea, Jr. as Secretary of MIKOHN GAMING
CORPORATION.
S/ WANDA M. JACOBSON
---------------------------
NOTARY PUBLIC
WANDA M. JACOBSON
[SEAL] Notary Public - Nevada
Clark County
My appt. exp. Sep. 7, 1988
9
<PAGE>
ENDORSEMENT ON PAGE 1 (OBVERSE):
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
JUN 07 1995
3599-86
DEAN HELLER SECRETARY OF STATE
NO.
------------------
ENDORSEMENT ON PAGE 6 (REVERSE):
STATE OF NEVADA
Secretary of State
I hereby certify that this is a true
and complete copy of the document
as filed in this office.
DATED: JUN 07 '95
-----------
S\ DEAN HELLER
Secretary of State
BY S/ PATRICIA KAMAN
----------------------------
<PAGE>
EXHIBIT 4.2
AMENDED AND RESTATED
--------------------
CODE OF BYLAWS
--------------
OF
--
MIKOHN GAMING CORPORATION
-------------------------
ARTICLE I
OFFICES
-------
Section 1.1. Principal Office. The registered office and principal
----------------
office for the transaction of the business of the Corporation shall be in the
City of Las Vegas, County of Clark, State of Nevada.
Section 1.2. Other Offices. The Corporation may also have offices at
-------------
such other places both within and without the State of Nevada as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 2.1. Place. Meetings of the stockholders of the Corporation
-----
shall be held at any place within or without the State of Nevada as may be
designated by the persons or persons calling the meeting.
Section 2.2. Date. Stockholders meetings shall be held at least
----
annually on a date and time designated by the Board of Directors. All meetings
of the stockholders shall be called solely by resolution of the Board of
Directors, acting by not less than a majority of the entire Board, the Chairman
of the Board or President. The power of stockholders to call a stockholders
meeting for any purpose is specifically denied. Except as provided in Section
2.3(1), no business shall be transacted and no corporate action shall be taken
at a meeting of the stockholders other than that stated in the notice of
meeting. Failure to hold any stockholders meeting shall not work a forfeiture
or dissolution of the Corporation.
Section 2.3. Notice of Meetings; Waiver.
--------------------------
(1) Business shall be transacted at stockholders meetings only if it
is (i) specified in a proper notice of the meeting (or any supplement thereto),
(ii) otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) brought before the meeting by a stockholder of
record entitled to vote at such meeting who gives advance notice as hereafter
provided.
MIKOHN BYLAWS, Page 1 of 14
<PAGE>
(2) A stockholder may bring business before the meeting only if
written notice of such stockholder's intent to do so is transmitted to, and
received by, the Secretary of the Corporation at the principal place of business
of the Corporation not later than 75 days prior to the anniversary of the date
of the immediately preceding annual meeting which was specified in the initial
formal notice of such meeting (but if the date of the forthcoming annual meeting
is more than 30 days after such anniversary date, such written notice will also
be timely if received by the Secretary by the later of the 75th day prior to the
forthcoming meeting date and the close of business on the 30th day following the
date on which the Corporation makes public disclosure of the meeting date).
Each notice given by such stockholder shall set forth: (i) a brief description
of the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting; (ii) the name and address of the
stockholder who intends to propose such business; (iii) a representation that
the stockholder is a holder of record, setting forth the shares so held, and
intends to appear in person or by proxy as a holder of record at the meeting to
propose such business; and (iv) any material interest of the shareholder in such
business.
(3) If the facts show that business was not properly brought before
the meeting in accordance with the foregoing provisions, the chairman of the
meeting shall so determine and declare to the meeting, whereupon such business
shall not be transacted. Public disclosure of the date of a forthcoming meeting
may be made by the Corporation not only by the giving of the formal notice of
the meeting but also by notice to a national securities exchange or to the
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") (if the Corporation's common stock is then listed on such exchange or
quoted on NASDAQ), by filing a report under Section 13 or 15(d) of the
Securities Exchange Act of 1934 (if the Corporation is then subject thereto), by
a mailing to stockholders, or by a general press release.
(4) Any action required to be taken or which may be taken at any
meeting of stockholders of the Corporation may be taken without a meeting if
authorized by the written consent of stockholders holding at least 60% of the
voting power.
Section 2.4. Quorum. A majority of the shares entitled to vote,
------
represented in person or by proxy, shall constitute a quorum at a meeting of the
stockholders. The stockholders present at a duly noticed and authorized meeting
may continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. The act of a majority of the
shares entitled to vote at a meeting at which a quorum is present shall be the
act of the stockholders, unless a greater number is required by applicable law.
Section 2.5. Proxies. A stockholder may vote either in person or by
-------
proxy executed in writing by the stockholder or by his duly authorized attorney-
in-fact. No proxy shall be valid after six months from the date of its
creation, unless otherwise provided in the proxy and allowed by law.
MIKOHN BYLAWS, Page 2 of 14
<PAGE>
Section 2.6. Telephonic Meetings. Stockholders may participate in a
-------------------
meeting of stockholders by means of telephonic conference or similar method of
communication by which all persons participating in the meeting can hear each
other only upon approval of the Secretary of the Corporation, which approval may
be withheld for any reason or no reason.
Section 2.7. Amendments. Notwithstanding any other provision of
----------
these Bylaws (and notwithstanding the fact that a lesser percentage may be
specified by law) the affirmative vote of at least 80% of the combined voting
power of the then outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with, or repeal Section 2.2 or
Section 2.3 of this Article II.
ARTICLE III
THE BOARD OF DIRECTORS
----------------------
Section 3.l. Number and Qualification. The business and affairs of
------------------------
the Corporation shall be managed by a Board of Directors which shall be not less
than three nor more than fifteen, the exact number to be fixed from time to time
solely by resolution of the Board of Directors approved by not less than three-
fourths (3/4) of the directors then in office, provided, however, that if all of
the issued and outstanding shares of stock of the Corporation are owned
beneficially and of record by less than three (3) shareholders, the number of
directors may be less than three (3), but not less than the number of beneficial
and record owners of the shares. Members of the Board of Directors shall hold
office until their successors shall have been elected and qualified.
Section 3.2. Increase or Decrease in Board. Newly created
-----------------------------
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from the death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled solely by the Board of Directors, acting by not less than a
majority of the directors then in office. Any director so chosen shall hold
office until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No decrease
in the number of directors shall shorten the term of any incumbent director.
Section 3.3. Removal. At any meeting of stockholders of the
-------
Corporation, the notice of which shall state that the removal of a director or
directors is among the purposes of the meeting, the holders of capital stock
entitled to vote thereon, present in person or by proxy, by vote of at least
two-thirds (2/3) of the outstanding shares thereof, voting together as a single
class, may remove such director or directors.
Section 3.4. Nominations. Except as otherwise fixed by resolution of
-----------
the Board of Directors pursuant to the Articles of Incorporation relating to the
authorization of the Board of Directors to provide by resolution for the
issuance of Preferred Stock and to determine the
MIKOHN BYLAWS, Page 3 of 14
<PAGE>
rights of the holders of such Preferred Stock to elect directors, nominations
for election of directors at an annual stockholders meeting or other meeting
called for the purpose of electing directors shall be made either by the Board
of Directors or by any shareholder of record entitled to vote for the election
of directors who gives advance notice as hereafter provided.
(1) A stockholder may nominate persons for election as directors only
if written notice of such stockholder's intent to make such nomination is
transmitted to, and received by, the Secretary of the Corporation at the
principal place of business of the Corporation not later than (i) in the case of
any annual meeting, 75 days prior to the anniversary of the date of the
immediately preceding annual meeting which was specified in the initial formal
notice of such meeting (but if the date of the forthcoming annual meeting is
more than 30 days after such anniversary date, such written notice will also be
timely if received by the Secretary by the later of the 75th day prior to the
forthcoming meeting date and the close of business on the 30th day following the
date on which the Corporation makes public disclosure of the meeting date) and
(ii) in the case of any other meeting, the close of business on the 15th day
following the date on which the Corporation first makes public disclosure of the
meeting date. Each notice given by such stockholder shall set forth: (i) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (ii) a representation that the
stockholder is a holder of record, setting forth the shares so held, and intends
to appear in person or by proxy as a holder of record at the meeting to propose
such business; (iii) a description of all arrangements or understandings between
such stockholder and each nominee proposed by the stockholder and any other
person or persons (identifying such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (iv) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission; and (v) the consent of each nominee
to serve as a director of the Corporation if so elected.
(2) If the facts show that a nomination was not properly made in
accordance with the foregoing provisions, the chairman of the meeting shall so
determine and declare to the meeting, whereupon the defective nomination shall
be disregarded. Public disclosure of the date of a forthcoming meeting may be
made by the Corporation not only by the giving of the formal notice of the
meeting but also by notice to a national securities exchange or to the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ")
(if the Corporation's common stock is then listed on such exchange or quoted on
NASDAQ), by filing a report under Section 13 or 15(d) of the Securities Exchange
Act of 1934 (if the Corporation is then subject thereto), by a mailing to
stockholders, or by a general press release.
Section 3.5. Location of Meetings. Any meeting of the Board of
--------------------
Directors may be held either within or without the State of Nevada.
Section 3.6. Annual and Regular Meetings. Immediately after the
---------------------------
annual meeting of the stockholders, the Board of Directors may meet each year
for the purpose of organization,
MIKOHN BYLAWS, Page 4 of 14
<PAGE>
election of officers, and consideration of any other business that may properly
be brought before the meeting. No notice of any kind to either old or new
members of the Board of Directors for this annual meeting shall be necessary.
The Board of Directors may provide by resolution the place, date and hour for
holding other regular meetings of the Board of Directors, which meetings may be
held without notice other than by such resolution.
Section 3.7. Other Meetings. Other meetings of the Board of
--------------
Directors may be held upon notice by letter, telegram, facsimile, cable, or
radiogram, delivered for transmission not later than during the third day
immediately preceding the day for the meeting, or by word of mouth, telephone,
or radiophone received not later than during the second day preceding the day
for the meeting, upon the call of the Chairman of the Board, President,
Secretary, or any two (2) directors of the Corporation at any place within or
without the State of Nevada. Notice of any meeting of the Board of Directors
may be waived in writing signed by the person or persons entitled to the notice,
whether before or after the time of the meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of the meeting.
Section 3.8. Quorum. A majority of the number of directors holding
------
office shall constitute a quorum for the transaction of business. The act of
the majority of the directors present at a meeting at which a quorum has been
achieved shall be the act of the Board of Directors unless the act of a greater
number is required by applicable law, the Articles of Incorporation or these
Bylaws.
Section 3.9. Written Consents. Any action that may be taken at a
----------------
meeting of the directors, or of a committee, may be taken without a meeting if a
consent in writing, setting forth the actions taken, shall be signed by all of
the directors, or all of the members of the committee, as the case may be. Such
written consent shall be filed with the minutes of proceedings of the Board or
committee.
Section 3.10. Committees. The Board of Directors may, by resolution
----------
passed by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified ;member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Subject to applicable law and to the
extent provided in the resolution of the Board of Directors, any such committee
shall have and may exercise all the posers of the Board of Directors in the
management of the business and affairs of the corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. The committees shall keep
regular minutes of their proceedings and report the same to the Board when
required.
MIKOHN BYLAWS, Page 5 of 14
<PAGE>
Section 3.11. Amendments. Notwithstanding any other provision of
----------
these Bylaws (and notwithstanding the fact that a lesser percentage may be
specified by law) the affirmative vote of at least 80% of the combined voting
power of the then outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with, or repeal Section 3.2 or
Section 3.4 of this Article III.
Section 3.12. Compensation. The Board of Directors shall have the
------------
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid either or both a fixed sum for attendance at each meeting of the
Board of Directors and a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
-------
Whenever, under the provisions of the statutes or of the Articles of
Incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by a means specified in Section 3.7 of these Bylaws.
Whenever any notice is required to be given under the provisions of the statutes
or of the Articles of Incorporation or of these by-laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent there to.
ARTICLE V
THE OFFICERS
------------
Section 5.1. Officers. The officers of the Corporation shall consist
--------
of a President, Secretary and Treasurer, and may also include a Chairman of the
Board, one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers,
or such other officers or assistant officers or agents as may be provided
herein, or otherwise deemed necessary, from time to time by the Board of
Directors. Officers need not be directors of the Corporation. Each officer so
elected shall hold office until his successor is elected and qualified, but
shall be subject to removal at any time by the vote or written consent of a
majority of the directors.
Section 5.2. Term and Vacancies. The officers of the Corporation
------------------
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed by the
MIKOHN BYLAWS, Page 6 of 14
<PAGE>
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors; provided, however, if the Board of Directors
approves a written employment agreement or amendment thereto which requires a
super-majority vote for removal, the terms of the written employment agreement
shall govern. Whenever any vacancies shall occur in any office by death,
resignation, removal, increase in the number of offices of the Corporation, or
otherwise, the same shall be filled by the Board of Directors, and the officer
so elected shall hold office until his successor is elected and qualified,
subject to removal as aforesaid.
Section 5.3. The Chairman of the Board of Directors. The Chairman of
--------------------------------------
the Board of Directors, if there shall be such an officer, shall preside at all
meetings of the directors, discharge all duties incumbent upon the presiding
officer, and perform such other duties as the Board of Directors may prescribe.
Section 5.4. The President. The President shall have active
-------------
executive management of the operations of the Corporation, subject, however, to
the control of the Board of Directors. He shall preside at all meetings of
stockholders, discharge all the duties incumbent upon a presiding officer, and
perform such other duties as this Code of Bylaws provides or the Board of
Directors may prescribe. The President shall have full authority to execute
proxies in behalf of the Corporation, to vote stock owned by it in any other
corporation, and to execute powers of attorney appointing other corporations,
partnerships, or individuals the agent of the Corporation. In the absence of a
Chairman of the Board of Directors, the President shall perform the duties
specified in Section 5.3.
Section 5.5. Vice Presidents. Vice Presidents shall perform such
---------------
duties as this Code of Bylaws may provide or the Board of Directors may
prescribe. Vice Presidents may be ranked in seniority and vested with such
authority as the Board of Directors may prescribe.
Section 5.6. The Secretary. The Secretary shall attend all meetings
-------------
of the stockholders and of the Board of Directors, and shall keep a true and
complete record of the proceedings of these meetings. He shall be custodian of
the records of the Corporation. He shall attend to the giving of all notices
and shall perform such other duties as this Code of Bylaws may provide or the
Board of Directors may prescribe.
Section 5.7. The Treasurer. The Treasurer shall keep correct and
-------------
complete records of account, showing accurately at all times the financial
condition of the Corporation. He shall be the legal custodian of all moneys,
notes, securities, and other valuables that may from time to time come into the
possession of the Corporation. He shall immediately deposit all funds of the
Corporation coming into his hands in reliable banks or other depositaries to be
designated by the Board of Directors, and shall keep these accounts in the name
of the Corporation. He shall furnish at meetings of the Board of Directors, or
whenever requested, a statement of the financial condition of the Corporation,
and shall perform such other duties as this Code of Bylaws may provide or the
Board of Directors may prescribe. The Treasurer may be required to furnish bond
in such amount as shall be determined by the Board of Directors.
MIKOHN BYLAWS, Page 7 of 14
<PAGE>
Section 5.8. Transfer of Authority. In case of the absence of any
---------------------
officer of the Corporation, or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may transfer the powers or duties of
that officer to any other officer or to any director or employee of the
Corporation, provided a majority of the full Board of Directors concurs.
Section 5.9. Salaries. The salaries of all officers and agents of
--------
the Corporation shall be fixed by the Board of Directors.
ARTICLE VI
CERTIFICATES OF SHARES
----------------------
Section 6.1. Issuance of Shares. The Board of Directors may
------------------
authorize shares to be issued for consideration consisting of any tangible or
intangible property or benefit to the Corporation, including, but not limited
to, cash, promissory notes, services performed, contracts for services to be
performed or other securities of the Corporation. Before the Corporation issues
shares, the Board of Directors must determine that the consideration received or
to be received for the shares to be issued is adequate. The judgment of the
Board of Directors as to the adequacy of the consideration received for the
shares issued is conclusive in the absence of actual fraud in the transaction.
When the Corporation receives the consideration for which the Board of Directors
authorized the issuance of shares, the shares issued therefor are fully paid and
nonassessable.
Section 6.2. Certificates Representing Shares. Each holder of the
--------------------------------
shares of stock of the Corporation shall be entitled to a certificate signed by
the President or a Vice President and the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 6.3. Transfer of Stock. The Corporation or any transfer
-----------------
agent shall register a transfer of a stock certificate presented to it for
transfer if:
(1) Endorsement. The certificate is properly endorsed by the
-----------
registered holder or by his duly authorized attorney;
(2) Witnessing. The endorsement or endorsements are witnessed by one
----------
witness unless this requirement is waived by the Secretary of the Corporation;
(3) Adverse Claims. The Corporation has no notice of any adverse
--------------
claims or has discharged any duty to inquire into any such claims;
(4) Collection of Taxes. There has been compliance with any
-------------------
applicable law relating to the collection of taxes; and
MIKOHN BYLAWS, Page 8 of 14
<PAGE>
(5) Additional Requirements. Any additional requirements imposed by
-----------------------
any transfer agent of the Corporation shall have been complied with or
satisfied.
Section 6.4. Where a certificate is countersigned (1) by a transfer
agent other than the Corporation or its employee, or (2) by a registrar other
than the Corporation or its employee, any other signature on the certificate may
be by facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 6.5. Lost, Stolen or Destroyed Certificates. The Board of
--------------------------------------
Directors, or a transfer agent of the Corporation duly designated and authorized
by the Board of Directors, may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of shares to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors or such transfer agent may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 6.6. Transfer. Upon the proper surrender to the Corporation
--------
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 6.7. Record Date. In order that the Corporation may
-----------
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6.8. Registration. The Corporation shall be entitled to
------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends,
MIKOHN BYLAWS, Page 9 of 14
<PAGE>
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Nevada.
ARTICLE VII
GENERAL PROVISIONS
------------------
DIVIDENDS
---------
Section 7.1. Kind. Dividends upon the shares of the Corporation,
----
subject to the provisions of the Articles of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to the laws of the State of Nevada. Dividends may be paid in cash, in property,
or in shares of the Corporation, subject to the provisions of the Articles of
Incorporation.
Section 7.2. Reserves. Before payment of any dividend, there may be
--------
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 7.3. Fiscal Year. The fiscal year of the Corporation shall
-----------
end on December 31, unless otherwise determined by the Board of Directors.
Section 7.4. Seal. The corporate seal shall have inscribed thereon
----
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Nevada". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
NEGOTIABLE INSTRUMENTS, DEEDS, AND CONTRACTS
--------------------------------------------
All checks, drafts, notes, bonds, bills of exchange, and orders for
the payment of money of the Corporation; all deeds, mortgages, and other written
contracts and agreements to which the Corporation shall be a party; and all
assignments or endorsements of stock certificates, registered bonds, or other
securities owned by the Corporation shall, unless otherwise required by law, or
otherwise authorized by the Board of Directors as hereinafter set forth, be
signed by the President or by anyone of the following officers: Vice President,
Secretary, or Treasurer. The Board of Directors may designate one or more
persons, officers
MIKOHN BYLAWS, Page 10 of 14
<PAGE>
or employees of the Corporation, who may, in the name of the Corporation and in
lieu of, or in addition to, those persons hereinabove named, sign such
instruments; and may authorize the use of facsimile signatures of any of such
persons. Any shares of stock issued by any other corporation and owned or
controlled by the Corporation may be voted at any stockholders meeting of the
other corporation by the President of the Corporation, if he be present, or, in
his absence, by the Secretary of the Corporation and, in the event both the
President and Secretary shall be absent, then by such person as the President of
the Corporation shall, by duly executed proxy, designate to represent the
Corporation at such stockholders meeting.
ARTICLE IX
INDEMNIFICATION
---------------
Section 9.1. Indemnification of Directors and Officers.
-----------------------------------------
(1) For purposes of this Article, (i) "Indemnitee" shall mean each
director or officer who was or is a party to, or is threatened to be made a
party to, or is otherwise involved in, any Proceeding (as hereinafter defined),
by reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving in any capacity at the request of the
Corporation as a director, officer, employee, agent, partner, or fiduciary of,
or in any other capacity for, another corporation or any partnership, joint
venture, trust, or other enterprise; and (ii) "Proceeding" shall mean any
threatened, pending, or completed action or suit (including without limitation
an action, suit, or proceeding by or in the right of the Corporation), whether
civil, criminal, administrative, or investigative.
(2) Each Indemnitee shall be indemnified and held harmless by the
Corporation for all actions taken by him or her and for all omissions
(regardless of the date of any such action or omission), to the fullest extent
permitted by Nevada law, against all expense, liability, and loss (including
without limitation attorneys' fees, judgments, fines, taxes, penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by the
Indemnitee in connection with any Proceeding.
(3) Indemnification pursuant to this Section shall continue as to an
Indemnitee who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors, and administrators.
(4) Expenses of officers and directors incurred in defending a
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. Notwithstanding the foregoing,
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.
MIKOHN BYLAWS, Page 11 of 14
<PAGE>
Section 9.2. Indemnification of Employees and Other Persons. The
----------------------------------------------
Corporation may, by action of its Board of Directors and to the extent provided
in such action, indemnify employees and other persons as though they were
Indemnitees.
Section 9.3. Non-Exclusivity of Rights. The rights to
-------------------------
indemnification provided in this Article shall not be exclusive of any other
rights that any person may have or hereafter acquire under any statute,
provision of the Corporation's Articles of Incorporation or Bylaws, agreement,
vote of stockholders or directors, or otherwise.
Section 9.4. Insurance. The 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 or her and liability and
expenses incurred by him or her in his or her capacity as a director, officer,
employee, or agent, or arising out of his or her status as such, whether or not
the Corporation has the authority to indemnify him or her against such liability
and expenses.
Section 9.5. Other Financial Arrangements. The other financial
----------------------------
arrangements which may be made by the Corporation may include the following (1)
the creation of a trust fund; (2) the establishment of a program of self-
insurance; (3) the securing of its obligation of indemnification by granting a
security interest or other lien or any assets of the Corporation; (4) the
establishment of a letter of credit, guarantee 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
therefor, to be liable for intentional misconduct, fraud, or a knowing violation
of law, except with respect to advancement of expenses or indemnification
ordered by a court.
Section 9.6. Other Matters Relating to Insurance or Financial
------------------------------------------------
Arrangements. 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. In the absence
of fraud:
(1) 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
(2) the insurance or other financial arrangement;
(i) is not void or voidable; and
MIKOHN BYLAWS, Page 12 of 14
<PAGE>
(ii) 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.
Section 9.7. Amendment. The provisions of this Article
---------
relating to indemnification, shall constitute a contract between the Corporation
and each of its directors and officers which may be modified as to any director
or officer only with that person's consent or as specifically provided in this
Section. Notwithstanding any other provision of these Bylaws relating to their
amendment generally, any repeal or amendment of this Article which is adverse to
any director or officer shall apply to such director or officer only on a
prospective basis, and shall not limit the rights of an Indemnitee to
indemnification with respect to any action or failure to act occurring prior to
the time of such repeal or amendment. Notwithstanding any other provision of
these Bylaws, no repeal or amendment of these Bylaws shall affect any or all of
this Article so as to limit or reduce the indemnification in any manner unless
adopted by (1) the unanimous vote of the directors of the Corporation then
serving, or (2) by the affirmative vote of at least 80% of the combined voting
power of the then outstanding shares of stock entitled to vote generally in the
election of directors voting together as a single class; provided, however, that
no such amendment shall have retroactive effect inconsistent with the preceding
sentence.
Section 9.8. Changes in Nevada Law. References in this Article to
---------------------
Nevada law or to any provision thereof shall be to such law as it existed on the
date this Article was adopted or as such law thereafter may be changed; provided
that (1) in the case of any change which expands the liability of directors or
officers or limits the indemnification rights or the rights to advancement of
expenses which the Corporation may provide, the rights to limited liability, to
indemnification and to the advancement of expenses provided in the Corporation's
Articles of Incorporation and/or these Bylaws shall continue as theretofore to
the extent permitted by law; and (2) if such change permits the Corporation,
without the requirement of any further action by stockholders or directors, to
limit further the liability of directors (or limit the liability of officers) or
to provide broader indemnification rights or rights to the advancement of
expenses than the Corporation was permitted to provide prior to such change,
then liability thereupon shall be so limited and the rights to indemnification
and the advancement of expenses shall be so broadened to the extent permitted by
law.
ARTICLE X
AMENDMENTS
----------
Except as to those sections of these Bylaws requiring a super-majority
vote to alter, amend or repeal, the stockholders or the Board of Directors may
alter, amend, or repeal this Code of Bylaws or adopt a new Code of Bylaws upon
the affirmative vote of a majority of either body. Those sections of these
Bylaws requiring a super-majority vote to alter, amend, or repeal may be
altered, amended or repealed only upon the affirmative vote of such super-
majority.
MIKOHN BYLAWS, Page 13 of 14
<PAGE>
I hereby certify that the foregoing Bylaws are a true and correct copy
of the Bylaws of MIKOHN GAMING CORPORATION as adopted on the 18th day of
November, 1993.
/S/ CHARLES H. McCREA, JR.
_____________________________________
Charles H. McCrea, Jr. Secretary
MIKOHN BYLAWS, Page 14 of 14
<PAGE>
EXHIBIT 4.3
MIKOHN GAMING CORPORATION
STOCK OPTION PLAN
As Amended and Restated
-----------------------
Approved May 14, 1996
---------------------
1. PURPOSE
The purpose of the Mikohn Gaming Corporation Stock Option Plan is to further
the interests of Mikohn Gaming Corporation, a Nevada corporation (the
"Company"), and its Subsidiaries by encouraging and enabling selected officers,
directors (other than non-employee directors), employees consultants, advisers,
independent contractors and agents, upon whose judgment, initiative and effort
the Company is largely dependent for the successful conduct of its business, to
acquire and retain a proprietary interest in the Company by ownership of its
stock through the exercise of stock options to be granted hereunder. Options
granted Hereunder are either options intended to qualify as "incentive stock
options" within the meaning of Section 422 of the Code or non-qualified stock
options.
2. DEFINITIONS
Whenever used herein the following terms shall have the following meanings,
respectively:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Stock Option or Compensation Committee
appointed by the Board, or if no committee has been appointed, a reference to
"Committee" shall be deemed to refer to the Board.
(d) "Common Stock" shall mean the Company's Common Stock, $0.10 par value.
(e) "Company" shall mean Mikohn Gaming Corporation, a Nevada corporation.
(f) "Disinterested Person" shall have the meaning set forth in Rule 16b-3
promulgated by the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, or any successor rule.
(g) "Employee" shall mean, in connection with Incentive Options, only
employees of the Company or any Subsidiary or Parent Corporation of the Company.
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(h) "Fair Market Value Per Share" of the Common Stock on any date shall mean,
if the Common Stock is publicly traded, the mean between the highest and lowest
quoted selling prices of the Common Stock on such date or, if not available, the
mean between the bona fide bid and asked prices of the Common Stock on such
date. In any situation not covered above or if there were no sales on the date
in question, the Fair Market Value Per Share shall be determined by the
Committee in accordance with Section 20.2031-2 of the Federal Estate Tax
Regulations.
(i) "Incentive Option" shall mean an Option granted under the Plan which is
designated as and qualified as an incentive stock option within the meaning of
Section 422 of the Code.
(j) "Non-Qualified Option" shall mean an Option granted under the Plan which
is designated as a non-qualified stock option and which does not qualify as an
incentive stock option within the meaning of Section 422 of the Code.
(k) "Option" shall mean an Incentive Option or a Non-Qualified Option.
(l) "Optionee" shall mean any person who has been granted an Option under the
Plan.
(m) "Outside Director" shall have the meaning set forth in Section 162(m) of
the code.
(n) "Parent Corporation" shall have the meaning set forth in Section 424(e)
of the Code.
(o) "Permanent Disability" shall mean termination of a Relationship with the
Company or any Subsidiary or Parent Corporation of the Company with the consent
of the Company or such Subsidiary by reason of permanent and total disability
within the meaning of Section 22(e)(3) of the Code.
(p) "Plan" shall mean the Mikohn Gaming Corporation Stock Option Plan, as
amended.
(q) "Relationship" shall mean that the Optionee is or has agreed to become an
officer, director (other than a non-employee director), employee, consultant,
adviser, independent contractor or agent of the Company or any Subsidiary of the
Company.
(r) "Subsidiary" shall have the meaning set forth in Section 424(f) of the
Code.
(s) "Termination for Cause" means the termination of any employee's
employment with the Company, whether voluntary or involuntary, that is
determined by the Committee to have resulted from the discovery by the Company
of the employee's
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<PAGE>
dishonesty, commission of a felony (regardless of whether or not prosecuted) or
fraud.
3. ADMINISTRATION
(a) The Plan shall be administered either (i) by the Board, or (ii) in the
discretion of the Board, by a Committee of at least two directors of the Company
appointed by the Board, all members of which are both Disinterested Persons and
Outside Directors, Notwithstanding the provisions of the immediately preceding
sentence, the requirement for Disinterested Persons in such sentence shall only
apply to the grant of Options to persons subject to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and the requirement for Outside
Directors in such sentence shall only apply to the grant of options to persons
who are Covered Employees within the meaning of Section 162(m) of the Code. The
Board may from time to time appoint members of the Committee in substitution for
or in addition to members previously appointed and may fill vacancies.
(b) Only the Board has authority to grant options and/or to approve any
changes in the terms thereof. Any action of the Committee with respect to the
administration of the Plan shall be taken by majority vote or by written consent
of a majority of its members, and all actions of the Committee are subject to
approval by the Board.
(c) Subject to the provisions of the Plan, the Committee shall have the
authority to construe and interpret the Plan, to define the terms used therein,
to determine the time or times an Option may be exercised and the number of
shares which may be exercised at any one time, to prescribe, amend and rescind
rules and regulations relating to the Plan, to approve and determine the
duration of leaves of absence which may be granted to participants without
constituting a termination of their employment for purposes of the Plan, and to
make all other determinations necessary or advisable for the administration of
the Plan. All determinations and interpretations made by the Committee shall be
conclusive and binding on all Optionees and on their guardians, legal
representatives and beneficiaries.
(d) The Company shall indemnify and hold harmless the members of the Board
and the Committee from and against any and all liabilities, costs and expenses
incurred by such persons as a result of any act, or omission to act, in
connection with the performance of such persons' duties, responsibilities and
obligations under the Plan, other than such liabilities, costs and expenses as
may result from the negligence, bad faith, willful misconduct or criminal acts
of such persons.
(e) The Company will provide financial information to the Optionees on the
same basis as the Company provides such information to its stockholders.
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<PAGE>
4. NUMBER OF SHARES SUBJECT TO PLAN
The aggregate number of shares of Common Stock subject to Options which may be
granted under the Plan shall not exceed 1,700,000. The shares of Common Stock
to be issued upon the exercise of Options may be authorized but unissued shares,
shares issued and reacquired by the Company or shares purchased by the Company
on the open market. If any Option granted hereunder shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject thereto shall again be available for the purposes of the Plan.
5. ELIGIBILITY AND PARTICIPATION
(a) Non-Qualified Options may be granted to any person who has a Relationship
with the Company or any of its Subsidiaries. Incentive Options may be granted
to any Employee. The Committee shall determine the persons to who Options shall
be granted, the time or times at which such Options shall be granted and the
number of shares to be subject to each Option. An Optionee may, if he is
otherwise eligible, be granted an additional Option or Options if the Committee
shall so determine. An Employee may be granted Incentive Options or Non-
Qualified Options or both under the Plan; provided, however, that the grant of
Incentive Options and Non-Qualified Options to an Employee shall be the grant of
separate Options and each Incentive Option and each Non-Qualified Option shall
be specifically designated as such.
(b) In no event shall the aggregate fair market value (determined as of the
time the Option is granted) of the shares with respect to which Incentive
Options (granted under the Plan or any other plans of the Company or any
Subsidiary or Parent Corporation of the Company) are exercisable for the first
time by an Optionee in any calendar year exceed $100,000.
(c) In no event shall the aggregate number of shares of Common Stock with
respect to which Options may be granted to a single Optionee during the term of
the Plan exceed 20 percent of the aggregate number of shares of Common Stock
subject to Options which may granted to all Optionees under the plan.
6. PURCHASE PRICE
The purchase price of each share covered by each Incentive Option shall not be
less than 100% of the Fair Market Value Per Share of the Common Stock on the
date the Incentive Option is granted; provided, however, that if at the time an
Incentive Option is granted the Optionee owns or would be considered to own by
reasons of Section 424(d) of the Code more that 10% of the total combined voting
power of all classes of stock of the Company or any Subsidiary or Parent
Corporation of the Company, the
4
<PAGE>
purchase price of the shares covered by such Incentive Option shall not be less
than 110% of the Fair Market Value Per Share of the Common Stock on the date the
Incentive Option is granted.
7. DURATION OF OPTIONS
The expiration date of the Option and all rights thereunder shall be
determined by the Committee. In the event the Committee does not specify the
expiration date of the Option, the expiration date shall be 10 years from the
date on which the Option was granted, and shall be subject to earlier
termination as provided herein; provided, however, that if at any time an
Incentive option is granted the Optionee owns or would be considered to won by
reason of Section 424(d) of the code more that 10% of the total combined voting
power of all classes of stock of the company or any Subsidiary or Parent
Corporation of the Company such Incentive Option shall expire five years from
the date the Incentive Option is granted unless the Committee selects an earlier
date.
8. EXERCISE OF OPTIONS
(a) An Option shall vest and become exercisable from time to time in
installments or otherwise in accordance with such schedule and upon such other
terms and conditions as the Committee shall in its discretion determine at the
time the Option is granted. An Optionee may purchase less than the total number
of shares for which the Option is exercisable, provided that a partial exercise
of an Option may not be for less that 100 shares, unless the exercise is during
the final year of the Option, and shall not include any fractional shares. As a
condition to the exercise, in whole or in part, of any Option, the Committee may
in its sole discretion require the Optionee to pay, in addition to the purchase
price of the shares covered by the Option, an amount equal to any federal, state
or local taxes that the Committee has determined are required to be paid in
connection with the exercise of such Option in order to enable the Company to
claim a deduction or otherwise. Furthermore, if any Optionee disposes of any
shares of stock acquired by exercise of an Incentive Option prior to the
expiration of either of the holding periods specified in Section 422(a)(1) of
the Code, the Optionee shall pay to the Company, or the Company shall have the
right to with- hold from any payment to be made to the Optionee, an amount equal
to any federal, state or local taxes that the Committee has determined are
required to be paid in connection with the exercise of such Option in order to
enable the Company to claim a deduction.
(b) No Option will be exercisable (and any attempted exercise will be deemed
null and void) if such exercise would created a right of recovery for "short-
swing profits" under Section 16(b) of the Securities Exchange Act of 1934, as
amended. This
5
<PAGE>
Section 8(b) is intended to protect persons subject to Section 16(b) against
inadvertent violations of Section 16(b) and shall not apply with respect to any
particular exercise of an Option if expressly waived in writing by the Optionee
at the time of such exercise.
9. METHOD OF EXERCISE
(a) To the extent that an Option has become exercisable, the Option may be
exercised from time to time by giving written notice to the Company stating the
number of shares with respect to which the Option is being exercised,
accompanied by payment in full, by cash or by certified or cashier's check
payable to the order of the Company or the equivalent thereof acceptable to the
Company, of the purchase price for the number of shares being purchased and, if
applicable, any federal, state or local taxes required to be paid in accordance
with the provisions of Section 8(a) hereof. The Company shall issue a separate
certificate or certificates with respect to each Option exercised by an
Optionee.
(b) In the committee's discretion, payment of the purchase price for the
shares with respect to which the Option is being exercised may be made in whole
or in part with shares of Common Stock. If payment is made with shares of
Common stock, the Optionee, or other person entitled to exercise the Option,
shall deliver to the Company certificates representing the number of shares of
Common Stock in payment for the shares being purchased, duly endorsed for
transfer to the Company. If requested by the Committee, prior to the acceptance
of such certificates in payment for such shares, the Optionee, or any other
person entitled to exercise the Option, shall supply the Committee with a
representation and warranty in writing that he has good and marketable title to
the shares represented by the certificate(s), free and clear of all liens and
encumbrances. The value of the shares of Common Stock tendered in payment for
the shares being purchased shall be their Fair Market Value Per Share on the
date of the exercise.
(c) Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the shares for such period as may be required
for it to comply, with reasonable diligence, with any applicable listing
requirements of any national securities exchange or any federal, state or local
law. If an Optionee or other person entitled to exercise an Option fails to
accept delivery of or fails to pay for all or any portion of the shares
requested in the notice of exercise upon tender of delivery thereof, the
Committee shall have the right to terminate his Option with respect to such
shares.
10. NON-TRANSFERABILITY OF OPTIONS
6
<PAGE>
No Option granted under the Plan shall be assignable or transferable by the
Optionee, either voluntarily or by operation of law, otherwise than by will or
the laws of descent and distribution, and each Option shall be exercisable
during the Optionee's lifetime only by the Optionee.
11. CONTINUANCE OF RELATIONSHIP
Nothing contained in the Plan or in any Option granted under the Plan shall
confer upon any Optionee any right with respect to the continuation of his
employment by or other Relationship with the company or any Subsidiary or Parent
Corporation of the Company, or interfere in any way with the right of the
Company or any Subsidiary or Parent Corporation of the Company at any time to
terminate such employment or other Relationship or to increase or decrease the
compensation of the Optionee from the rate in existence at the time of the grant
of an Option.
12. TERMINATION OF RELATIONSHIP OTHER THAN BY DEATH OR PERMANENT DISABILITY
Except as the Committee may otherwise determine at any time with respect to
any particular Non-Qualified Option granted hereunder:
(a) If an Optionee ceases to have a Relationship for any reason other than
his death or Permanent Disability, any Options granted to him shall terminate 90
days from he date on which such Relationship terminates unless such Optionee has
resumed or initiated a Relationship and has a Relationship on such date. During
the 90 day period, the Optionee may exercise any Option granted to him but only
to the extent such Option was exercisable on the date of termination of his
Relationship and provided that such Option has not expired or otherwise
terminated as provided herein. A leave of absence approved in writing by the
Committee shall not be deemed a termination of Relationship for purposes of this
Section 12, but no Option may be exercised during any such leave of absence,
except during the first 90 days thereof.
(b) For purposes hereof, termination of an Optionees's Relationship for
reasons other than death or Permanent Disability shall be deemed to take place
upon the earliest to occur of the following: (i) the date of the Optionee's
retirement from employment under the normal retirement policies of the Company
or any Subsidiary of the Company; (ii) the date of the Optionee's retirement
from employment with the approval of the Committee because of disability other
than Permanent Disability; (iii) the date the Optionee receives notice or
advice that his employment or other Relationship is terminated; or (iv) the date
the Optionee ceases to render the services which he was employed, engaged or
retained to render to the Company or any Subsidiary (absences for temporary
illness, emergencies and vacations or leaves of
7
<PAGE>
absence approved in writing by the Committee excepted). The fact that the
Optionee may receive payment from the Company or any Subsidiary of the Company
after termination for vacation pay, for services rendered prior to termination,
for salary in lieu of notice or for other benefits shall not affect the
termination date.
(c) Notwithstanding anything in the Plan to the contrary, no Option may be
exercised or claimed following an Optionee's termination of Relationship as a
result of Termination for Cause, and no Option may be exercised or claimed while
the Optionee is being investigated for a termination for Cause.
13. DEATH OR PERMANENT DISABILITY OF OPTIONEE
Except as the Committee may expressly determine otherwise at any time with
respect to any particular Non-Qualified Option granted hereunder, if an Optionee
shall die at a time when he is in a Relationship or if the Optionee shall cease
to have a Relationship by reason of Permanent Disability, any Options granted to
him shall terminate one year after the date of his death or termination of
Relationship due to Permanent Disability unless by its terms it shall expire
before such date or otherwise terminate as provided herein, and shall only be
exercisable to the extent that it would have been exercisable on the date of his
death or his termination of Relationship due to Permanent Disability. In the
case of death, the Option may be exercised by the person or persons to whom the
Optionee's rights under the Option shall pass by will or by the laws of descent
and distribution.
14. STOCK PURCHASE NOT FOR DISTRIBUTION
Each Optionee shall, by accepting the grant of an Option under the Plan,
represent and agree, for himself and his transferees by will or the laws of
descent and distribution, that all shares of stock purchased upon exercise of
the Option will be received and held without a view to distribution except as
may be permitted by the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder. After each notice of exercise of any
portion of an Option, if requested by the Committee, the person entitled to
exercise the Option shall agree in writing that the shares of stock are being
acquired in good faith without a view to distribution.
15. PRIVILEGES OF STOCK OWNERSHIP
No person entitled to exercise any Option granted under the Plan shall have
any of the rights or privileges of a stockholder of the Company with respect to
any shares of Common Stock issuable upon exercise of such Option until such
person has
8
<PAGE>
become the holder of record of such shares. No adjustment shall be made for
dividends or distributions of rights in respect of such shares if the record
date is prior to the date on which such person becomes the holder of record,
except as provided in Section 16 hereof.
16. ADJUSTMENTS
(a) If the number of outstanding shares of Common Stock is increased or
decreased, or if such shares are exchanged for a different number or kind of
shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock dividend, stock split, combination of
shares or other similar transaction, the aggregate number of shares of Common
Stock subject to the Plan as provided in Section 4 hereof, the share of Common
Stock subject to issued and outstanding Option under the Plan and the aggregate
number of shares of Common Stock with respect to which Options may be granted to
a single Optionee as provided in Section 5(c) hereof shall be appropriately and
proportionately adjusted by the Committee. Any such adjustment in the
outstanding Options shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the Option but with an appropriate
adjustment in the price for each share or other unit of any security covered by
the Option. No adjustment shall be made on account of any transaction or event
not specifically set forth in this Section 16(a), including, without limitation,
the issuance of Common Stock for consideration.
(b) Notwithstanding the provision of Section 16(a), upon the dissolution or
liquidation of the Company or upon any reorganization, merger or consolidation
with one or more corporations as a result of which the Company is not the
surviving corporation, or upon a sale of all or substantially all of the assets
of the Company to another corporation or entity, the Committee may take such
action, if any, as it in its discretion may deem appropriate to accelerate the
time within which and the extent to which Options may be exercised, to terminate
Options at or prior to the date of any such event, or to provide for the
assumption of Options by surviving, consolidated, successor or transferee
corporations.
(c) Adjustments under this Section 16 shall be made by the Committee, whose
determination as to which adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No fractional shares of stock shall be
issued under the Plan or in connection with any such adjustment.
17. AMENDMENT AND TERMINATION OF PLAN
(a) The Board may from time to time, with respect to any shares at the time
not subject to Options, suspend or terminate the Plan or amend or revise the
terms of the
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<PAGE>
Plan; provided that any amendment to the Plan shall be approved by a majority of
the outstanding shares of the Company if the amendment would (i) materially
increase the benefits accruing to participants under the Plan, (ii) increase the
number of shares of Common Stock which may be issued under the Plan, except as
permitted under the provisions of Section 16 hereof, or (iii) materially modify
the requirements as to eligibility for participation in the Plan.
(b) No amendment, suspension or termination of the Plan shall, without the
consent of the Optionee, alter or impair in a manner adverse to the Optionee any
right or obligation under any Option theretofore granted to such Optionee.
(c) The terms and conditions of any Option granted to an Optionee may be
modified or amended only by a written agreement executed by the Optionee and the
Company; provided, however, that if any amendment or modification of an
Incentive Option would constitute a "modification, extension or renewal" within
the meaning of Section 424(h) of the Code, such amendment shall be null and void
unless the amendment contains an acknowledgment by the parties substantially in
the following form: "The parties hereto recognize and agree that this amendment
constitutes a modification, renewal or extension within the meaning of Section
424(h) of the Code, of the option granted on ___________________."
18 EFFECTIVE DATE OF PLAN
The Plan shall become effective upon adoption by the Board and approval by
the Company's stockholders; provided, however, that prior to approval of the
Plan by the Company's stockholders, but after adoption by the Board, Options
may be granted under the Plan subject to obtaining the stockholders' approval of
the adoption of the Plan. Notwithstanding the foregoing, stockholders' approval
must occur no later than 12 months after the date of adoption of the Plan by the
Board.
19. TERM OF PLAN
No option shall be granted pursuant to the Plan after 10 years from the
earlier of the date of adoption of the Plan by the Board or the date of approval
of the Plan by the Company's stockholders.
The date of original adoption of the Plan by the Board was November 6, 1993.
The date of approval by the stockholders of the Plan's original adoption was
November 6, 1993. The plan was amended by the Board on December 23, 1993 to
effect certain nonsubstantive changes for which stockholder approval was not
required under Rule 16(b)-3 promulgated by the Securities and Exchange
Commission.
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<PAGE>
EXHIBIT 4.4
MIKOHN GAMING CORPORATION
DIRECTOR STOCK OPTION PLAN
As Amended and Restated
-----------------------
Approved May 14, 1996
---------------------
1. Purpose
The purpose of the Mikohn Gaming Corporation Director stock Option Plan is to
further the interests of Mikohn Gaming Corporation, a Nevada corporation (the
"Company"), by encouraging and enabling the non-employee member of the Company's
Board of Directors to acquire and retain a proprietary interest in the Company
by ownership of its stock through the exercise of non-qualified stock options to
be granted hereunder.
2. DEFINITIONS
Whenever used herein, the following terms shall have the following meaning,
respectively:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
(c) "Common Stock" shall mean the Company's Common Stock, $0.10 par value.
(d) "Company" shall mean Mikohn Gaming Corporation, a Nevada corporation.
(e) "Fair Market Value Per Share" of the Common Stock on any date shall mean,
if the Common Stock is publicly traded, the mean between the highest and lowest
quoted selling prices of the Common Stock on such date or if not available, the
mean between the bona fide bid and asked prices of the Common Stock on such
date. In any situation not covered above, or if there were no sales on the date
in question, the Fair Market Value Per Share shall be determined by the Board in
accordance with Section 20.2031-2 of the Federal Estate Tax Regulations.
(f) "Option" shall mean an option granted under the Plan which is designated
as a non-qualified stock option and which does not qualify as an incentive stock
option within the meaning of Section 422 of the Code.
(g) "Optionee" shall mean any person who has been granted an Option under the
Plan.
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(h) "Plan" shall mean the Mikohn Gaming Corporation Director Stock Option
Plan, as amended.
3. ADMINISTRATION
(a) The Plan shall be administered by the Board. Subject to the provisions of
the Plan, the Board shall have the authority to construe and interpret the Plan,
to define the terms used therein, to prescribe, amend and rescind rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable for the administration of the Plan. All determinations and
interpretations made by the Board shall be conclusive and binding on all
Optionees and on their guardians, legal representatives and beneficiaries.
(d) The Company shall indemnify and hold harmless the members of the Board
from and against any and all liabilities, costs and expenses incurred by such
persons as a result of any act, or omission to act, in connection with the
performance of such persons' duties, responsibilities and obligations under the
Plan, other than such liabilities, costs and expenses as may result from the
negligence, bad faith, willful misconduct or criminal acts of such persons.
4. NUMBER OF SHARES SUBJECT TO PLAN
The aggregate number of shares of Common Stock subject to Options which may
be granted under the Plan shall not exceed 150,000. The shares of Common Stock
to be issued upon the exercise of Options may be authorized but unissued shares,
shares issued and reacquired by the Company or shares purchased by the Company
on the open market. If any Option granted hereunder shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject thereto shall again be available for purposes of the Plan.
5. ELIGIBILITY
The persons eligible to receive Options under the Plan are the non-employee
members of the Board.
6. GRANTS
(a) Each person who becomes a non-employee member of the Board automatically
shall be granted, as of the date of his election or appointment to the Board, an
option to purchase 5,000 shares of common stock, subject to the terms and
conditions described herein.
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(b) Each non-employee member of the Board who has been granted an Option
under section 6(a) automatically shall be granted in each succeeding calendar
year, effective as of the adjournment of the annual meeting of stockholders, an
additional Option to purchase a number of shares of Common Stock determined
according to the following formula: (i) 5,000 shares, plus (ii) 1,000 shares for
each calendar year or portion thereof in which he or she shall have served as a
non-employee member of the Board. Each option so granted shall be exercisable
only in accordance with the provisions of Section 9 hereof.
7. PURCHASE PRICE
The purchase price of each share covered by each Option shall be 100% of the
Fair Market Value Per Share of the Common Stock on the date the Option is
granted.
8. DURATION OF OPTIONS
The expiration date of each Option shall be 10 years from the date on which
the Option was granted, and shall be subject to earlier termination as provided
herein.
9. EXERCISE OF OPTIONS
(a) An Option shall not vest and be exercisable until the first anniversary of
the date the Option was granted. On such first anniversary, the Option shall
become exercisable as to one-third of the shares covered by the Option, and on
each of the second and third such anniversaries, the Option shall become
exercisable as to an additional one-third of the shares covered by the Option.
An Optionee may purchase less than the total number of shares for which the
Option is exercisable, provided that a partial exercise of an Option (i) may not
be for less than 100 shares unless the exercise is during the final year of the
Option, and (ii) shall not include any fractional shares. As a condition to the
exercise, in whole or in part, of any Option, the Company may in its sole
discretion require the Optionee to pay, in addition to the purchase price of the
shares covered by the Option, an amount equal to any federal, state of local
taxes that the Company has determined are required to be paid in connection with
the exercise of such Option in order to enable the Company to claim a deduction
or otherwise.
(b) No option will be exercisable (and any attempted exercise will be deemed
null and void) if such exercise would create a right of recovery for "short-
swing profits" under Section 16(b) of the Securities Exchange Act of 1934, as
amended.
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This Section 9(b) is intended to protect persons subject to Section 16(b)
against inadvertent violation of Section 16(b) and shall not apply with respect
to any particular exercise of an Option if expressly waived in writing by the
Optionee at the time of such exercise.
10. METHOD OF EXERCISE
(a) To the extent that an Option has become exercisable, the Option may be
exercised from time to time by giving written notice to the Company stating the
number of shares with respect to which the Option is being exercised,
accompanied by payment in full, by cash or by certified or cashier's check
payable to the order of the Company or the equivalent thereof acceptable to the
Company, of the purchase price for the number of shares being purchased and, if
applicable, any federal, state or local taxes required to be paid in accordance
with the provisions of Section 9(a) hereof.
(b) Payment of the purchase price for the shares with respect to which the
Option is being exercised may be made in whole or in part with shares of Common
Stock. If payment is made with shares of Common Stock, the Optionee, or other
person entitled to exercise the Option, shall deliver to the Company
certificates representing the number of shares of Common Stock in payment for
the shares being purchased, duly endorsed for transfer to the Company. If
requested by the Company, prior to the acceptance of such certificates in
payment for such shares, the Optionee, or any other person entitled to exercise
the Option, shall supply the Company with a representation and warranty in
writing that he has good and marketable title to the shares represented by the
certificate(s), free and clear of all liens and encumbrances. The value of the
shares of Common Stock tendered in payment for the shares being purchased shall
be their Fair Market Value Per Share on the date of the exercise.
(c) Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the shares for such period as may be required
for it to comply, with reasonable diligence, with any applicable listing
requirements of any national securities exchange or any federal, state or local
law. If an Optionee, or other person entitled to exercise an Option, fails to
accept delivery of or fails to pay for all or any portion of the shares
requested in the notice of exercise, upon tender of delivery thereof, the
Company shall have the right to terminate his Option with respect to such
shares.
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11. NON-TRANSFERABILITY OF OPTIONS
No Option granted under the Plan shall be assignable or transferable by the
Optionee, either voluntarily or by operation of law, otherwise than by will or
the laws of descent and distribution, and each Option shall be exercisable
during the Optionee's lifetime only by the Optionee.
12. TERMINATION OF DIRECTORSHIP OTHER THAN BY DEATH OR PERMANENT DISABILITY
If an Optionee ceases to be a member of the Board for any reason other than
his death or permanent disability, any Options granted to him shall terminate 90
days form the date on which such directorship terminates. During such 90-day
period, the Optionee may exercise any Option granted to him but only to the
extent such Option was exercisable on the date of termination of his
directorship and provided that such Option has not expired or otherwise
terminated as provided herein.
13. DEATH OR PERMANENT DISABILITY OF OPTIONEE
If an Optionee ceases to be a member of the Board by reason of death or
permanent disability, any Option granted to him shall terminate one year after
the date of termination of his directorship due to death or permanent disability
unless by its terms it shall expire before such date or otherwise terminate as
provided herein, and shall only be exercisable to the extent that it would have
been exercisable on the date of termination of his directorship due to death or
permanent disability. In the case of death, the Option may be exercised by the
person or persons to whom the Optionee's rights under the Option shall pass by
will or by the laws of descent and distribution.
14. STOCK PURCHASE NOT FOR DISTRIBUTION
Each Optionee shall, by accepting the grant of an Option under the Plan,
represent and agree, for himself and his transferees by will or the laws of
descent and distribution, that all shares of stock purchased upon exercise of
the Option will be received and held without a view to distribution except as
may be permitted by the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder. After each notice of exercise of any portion
of an Option, if requested by the Company , the person entitled to exercise the
Option shall agree in writing that the shares of stock are being acquired in
good faith without a view to distribution.
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15. PRIVILEGES OF STOCK OWNERSHIP
No person entitled to exercise any Option granted under the Plan shall have
any of the rights or privileges of a stockholder of the Company with respect to
any shares of Common Stock issuable upon exercise of such Option until such
person has become the holder of record of such shares. No adjustment shall be
made for dividends or distributions of rights in respect of such shares if the
record date is prior to the date on which such person becomes the holder of
record, except as provided in Section 16 hereof.
16. ADJUSTMENTS
(a) If the number of outstanding shares of Common Stock is increased or
decreased or if such shares are exchanged for a different number or kind of
shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock dividend, stock split, combination of
shares or other similar transaction, the aggregate number of shares of Common
Stock subject to the Plan as provided in Section 4 hereof and the shares of
Common Stock subject to issued and outstanding Options under the Plan shall be
appropriately and proportionately adjusted by the Board. Any such adjustment in
the outstanding Options shall be made without change in the aggregate purchase
price applicable to the unexercised portion of the Option but with an
appropriate adjustment in the price for each share or other unit of any security
covered by the Option. No adjustment shall be made on account of any transaction
or event not specifically set forth in this Section 16(a), including without
limitation the issuance of Common Stock for consideration.
(b) Notwithstanding the provision of Section 16(a), upon the dissolution or
liquidation of the Company or upon any reorganization, merger or consolidation
with one or more corporations as a result of which the Company is not the
surviving corporation, or upon a sale of all or substantially all of the assets
of the Company to another corporation or entity, the Board may take such action,
if any, as it in its discretion may deem appropriate to accelerate the time
within which and the extent to which Options may be exercised, to terminate
Options at or prior to the date of any such event, or to provide for the
assumption of Options by surviving, consolidated, successor or transferee
corporations.
(c) Adjustments under this Section 16 shall be made by the Board, whose
determination as to which adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No fractional shares of stock shall be
issued under the Plan or in connection with any such adjustment.
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17. AMENDMENT AND TERMINATION OF PLAN
(a) The Board may from time to time, with respect to any shares at the time
not subject to Options, suspend or terminate the Plan or amend or revise the
terms of the Plan; provided that any amendment to the Plan shall be approved by
a majority of the outstanding shares of the Company if the amendment would (i)
materially increase the benefits accruing to participants under the Plan, (ii)
increase the number of shares of Common Stock which may be issued under the
Plan, except as permitted under the provisions of Section 16 hereof, or (iii)
materially modify the requirements as to eligibility for participation in the
Plan. Notwithstanding the foregoing, the provisions of Sections 5, 6 and 7
hereof may not be amended more than once every six months, other than to conform
with changes in the Code.
(b) No amendment, suspension or termination of the Plan shall, without the
consent of the Optionee, alter or impair in a manner adverse to the Optionee any
rights or obligations under any Option theretofore granted to such Optionee.
(c) The terms and conditions of any Options granted to an Optionee may be
modified or amended only by a written agreement executed by the Optionee and the
Company.
18. EFFECTIVE DATE OF PLAN
The Plan share become effective upon original adoption by the Board and
approval by the Company's stockholders of the original adoption of the Plan;
provided, however, that prior to such approval by the Company's stockholders,
but after the original adoption by the Board, Options may be granted under the
Plan subject to obtaining the stockholders' approval.
19. TERM OF PLAN
No option shall be granted pursuant to the Plan after 10 years from the
earlier of the date of original adoption of the Plan by the Board or the date of
approval by the Company's stockholders.
The date of original adoption of the Plan by the Board was November 6, 1993.
The date of approval by the stockholders of the Plan's original adoption was
November 6, 1993.
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EXHIBIT 5.1
Charles H. McCrea, Sr.
2176 Pueblo Circle
Las Vegas, NV 89109
(702) 369-2728
July 1, 1996
Board of Directors
Mikohn Gaming Corporation
1045 Palms Airport Drive
Las Vegas, NV 89119
RE: Mikohn Gaming Corporation
Registration Statement on Form S-8
Gentlemen:
I have represented Mikohn Gaming Corporation, a Nevada corporation (the
"Company") as special counsel in connection with the proposed issuance and sale
by the Company of [1] up to 1,000,000 additional shares (the "Option Shares") of
the Company's $.10 par value common stock (the "Common Stock") allocated to the
Mikohn Gaming Corporation Stock Option Plan (the "Option Plan") pursuant to the
exercise of options granted under the Option Plan, and [2] up to 100,000
additional shares (the "Director Shares") of the Company's Common Stock
allocated to the Mikohn Gaming Corporation Director Stock Option Plan (the
"Director Plan") pursuant to the exercise of options granted under the Director
Plan.
The Option Shares and the Director Shares are being registered by the
Company pursuant to a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), to be
filed with the Securities and Exchange Commission (the "Commission")
on July 2, 1996.
As such counsel, I have considered such matters of law and examined
originals (or copies certified or otherwise identified to my satisfaction) of
such records, certificates, documents and other instruments as I deem
appropriate under the circumstances.
I have relied upon the certificates of certain public officials and
corporate officers with respect to the accuracy of certain matters of fact
contained in the Registration Statement.
On the basis of the foregoing, it is my opinion that [1] the Option Shares,
when issued, sold and paid for pursuant to the permissible exercise of options
validly granted under the Option Plan, and [2] the Director Shares, when issued,
sold and paid for
<PAGE>
pursuant to the permissible exercise of options validly granted under the
Director Plan, will constitute legally issued, fully paid and non-assessable
shares of Common Stock of the Company.
Nothing herein is to be deemed an opinion as to the laws of any
jurisdiction other than the State of Nevada, and I do not claim to be an expert
under the securities laws of the United States or any other jurisdiction.
This opinion is intended solely for the use of the addressee and Hughes
Hubbard & Reed in connection with the issuance of the Option Shares and Director
Shares. It may not be relied upon by any other person or for any purpose, or
reproduced or filed publicly by any person without my written consent, except
that I hereby consent to the filing of this Opinion as an exhibit to the
Registration Statement. In giving this consent, I do not admit that I am in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ CHARLES H. MCCREA, SR
Charles H. McCrea, Sr.
Nevada Bar No. 2430
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Mikohn Gaming Corporation on Form S-8 of our reports dated February 12, 1996,
appearing in the Annual Report on Form 10-K of Mikohn Gaming Corporation for the
year ended December 31, 1995.
/s/ DELOITTE & TOUCHE LLP
Las Vegas, Nevada
July 1, 1996
