<PAGE>
As filed with the Securities and Exchange Commission
on July 2, 1997
================================================================================
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 Identification
incorporation or organization) Number)
1045 Palms Airport Dr, P. O. Box 98686, Las Vegas, NV 89193-8686
(Address of Principal Executive Office)
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 Dr, P. O. Box 98686, Las Vegas, NV 89193-8686
(Name and address of agent for service)
(702) 896-3890
(Telephone number including area code, of agent for service)
<TABLE>
<CAPTION>
==================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
- ---------- ---------- -------------- ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock, 700,000
$.10 Par Value shares (1) $4.00(2) $2,800,000 $848.48
==================================================================================================
</TABLE>
(1) Includes an indeterminate 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 on the average of the high and low prices of
the Registrant's Common Stock as reported on the NASDAQ National Market
System on June 25, 1997
<PAGE>
MIKOHN GAMING CORPORATION
EXPLANATORY NOTE
This Registration Statement relates to a 1997 amendment to the Mikohn
Gaming Corporation Stock Option Plan, as heretofore amended (the "Stock Option
Plan"). This 1997 amendment increased the aggregate number of shares of common
stock authorized for issuance under the Stock Option Plan from 1,700,000 to
2,400,000. The Mikohn Gaming Corporation Director Stock Option Plan as
heretofore amended (the "Director Plan"), which also is covered by this
Registration Statement, has not been further amended. The Stock Option Plan and
the Director Plan are herein collectively referred to as the "Plans."
The shares of common stock issuable under the Plans were originally
registered pursuant to a Registration Statement on Form S-8 (File No. 33-73506)
which was filed with the Securities and Exchange Commission ("Commission") on
December 29, 1993 (the "1993 Registration Statement"). Shares of common stock
totaling 750,000 were initially authorized for issuance under the 1993
Registration Statement, 700,000 under the Stock Option Plan and 50,000 shares
under the Director Plan.
Additional shares of common stock issuable under the Plans were
registered pursuant to a Registration Statement on Form S-8 (File No. 333-07441)
which was filed with the Commission on July 2, 1996 (the "1996 Registration
Statement"). The additional shares registered under the 1996 Registration
Statement included 1,000,000 shares allocated to the Stock Option Plan (for a
total of 1,700,000) and 100,000 shares allocated to the Director Plan (for a
total of 150,000), bringing the aggregate number of shares registered under both
Plans to 1,850,000.
This Registration Statement relates to and registers an additional
700,000 shares that may be issued pursuant to the Stock Option Plan. The
contents of the 1993 Registration Statement and the 1996 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 and the 1996 Registration Statement.
II-2
<PAGE>
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) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, including the portions of the Registrant's definitive proxy
statement for its 1997 Annual Meeting of Stockholders incorporated by reference
into such Annual Report;
(b) Registrant's Quarterly Report on Form 10-Q for the three months
ended March 31, 1997; and
(c) 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") 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.
II-3
<PAGE>
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 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 unsuccessful 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
II-4
<PAGE>
indemnification shall continue as to directors, officers, employees or agents
who have ceased to hold such positions, and to their heirs, executors and
administrators.
Sections 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
corporation would have the power to indemnify him against such liabilities under
Section 78.151.
The Articles of Incorporation and Bylaws of the Registrant provide for
indemnification or its officers and directors, substantially identical in scope
to that permitted under Section 78.151 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 directors and officers to the fullest extent permitted by applicable
provisions of Nevada, subject to amounts paid by insurance.
Each of the Plans to which this Registration Statement refers requires
the Registrant to indemnify its directors against liabilities which may be
incurred in connection with the administration of the 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 Mikohn Gaming Corporation Stock Option Plan, as amended.
4.2 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 ("Securities Act").
II-5
<PAGE>
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.
(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
offering thereof.
II-6
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the securities act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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, at Las Vegas, Nevada, on the 9th day of June, 1997.
MIKOHN GAMING CORPORATION
By /s/ DAVID J. THOMPSON
-----------------------
David J. Thompson
Chairman of the Board and
Chief Executive Officer
Each of the persons whose signature appears below hereby appoints
David J. Thompson and Richard M. Irvine, or either of them, his attorney-in-fact
and agent 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; grants to each such
attorney-in-fact full power and authority to perform and do each requisite act
and thing pertaining thereto with the same force and effect as the undersigned
might perform and do in person; and ratifies and confirms all that each said
attorney-in-fact might 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.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------- ------------------------- ----
<S> <C> <C>
S/DAVID J. THOMPSON Chairman of the Board and June 9, 1997
- ---------------------- Chief Executive Officer
David J. Thompson
S/RICHARD M. IRVINE Director, President and June 9, 1997
- ---------------------- Chief Operating Officer
Richard M. Irvine
S/DENNIS A GARCIA Director June 9, 1997
- ----------------------
Dennis A. Garcia
S/BRUCE E. PETERSON Director June 9, 1997
- ----------------------
Bruce E. Peterson
</TABLE>
S-1
<PAGE>
<TABLE>
<S> <C> <C>
S/TERRANCE W. OLIVER Director June 9, 1997
- ------------------------
Terrance W. Oliver
S/JOHN K. CAMPBELL Director June 9, 1997
- ------------------------
John K. Campbell
S/DOUGLAS M. TODOROFF Director June 9, 1997
- ------------------------
Douglas M. Todoroff
S/DONALD W. STEVENS Executive Vice President, June 9, 1997
- ------------------------ Treasurer and Chief
Donald W. Stevens Financial Officer
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
-------------
<S> <C>
4.1 Mikohn Gaming Corporation Stock Option
Plan, 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)....................... N/A
</TABLE>
<PAGE>
EXHIBIT 4.1
STOCKMIKOHN GAMING CORPORATION
STOCK OPTION PLAN
As Amended and Restated through
-------------------------------
June 11, 1997
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) "Employee" shall mean, in connection with Incentive Options, only
employees of the Company or any Subsidiary or Parent Corporation of the Company.
(g) "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
1
<PAGE>
Fair Market Value Per Share shall be determined by the Committee in accordance
with Section 20.2031-2 of the Federal Estate Tax Regulations.
(h) "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.
(i) "Non-Employee Director" 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./1/
(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
- --------------------
/1/ At the date set forth on the first page of this Plan, the following was
the effective definition under Rule 16b-3:
(b)(3)(i) A Non-Employee Director shall mean a director who:
(A) Is not currently an officer (as defined in Sec. 240.16a-1(f)) of
the issuer or a parent or subsidiary of the issuer, or otherwise
currently employed by the issuer or a parent or subsidiary of the
issuer,
(B) Does not receive compensation, either directly or indirectly,
from the issuer or a parent or subsidiary of the issuer, for services
rendered as a consultant, or in any capacity other than as a director,
except for an amount that does not exceed the dollar amount for which
disclosure would be required pursuant to Sec. 229.404(a) of this
chapter,
(C) Does not possess an interest in any other transaction for which
disclosure would be required pursuant to Sec. 229.404(b) of this
chapter.
2
<PAGE>
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 dishonesty, commission of a felony (regardless of whether or
not prosecuted) or fraud.
3. ADMINISTRATION
(a) The Plan shall be administered by a Committee of at least two directors
of the Company appointed by the Board, all members of which are both Non-
Employee Directors and Outside Directors. 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. In the event the Board fails to
designate a committee to administer the Plan, the Plan shall be administered by
the Board. To the extent not inconsistent with applicable law, the Board or
Committee may from time to time delegate to one or more officers of the Company
any or all of its authorities granted hereunder except with respect to awards to
persons subject to Section 16 of the Securities Exchange Act of 1934.
(b) 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 so 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
3
<PAGE>
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.
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 2,400,000. 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
4
<PAGE>
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 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 own 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 withhold 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
5
<PAGE>
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.
This 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
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
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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 the 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 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.
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(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 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,
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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 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.
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(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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EXHIBIT 5.1
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Charles H. McCrea, Sr.
2176 Pueblo Circle
Las Vegas, NV 89109
(702) 369-2728
June 26, 1997
Board of Directors
Mikohn Gaming Corporation
1045 Palms Airport Drive
Las Vegas, NV 89119
RE: Mikohn Gaming Corporation Stock Option Plan
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 up to 700,000 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.
The Option 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 "Securities Act"), to be filed with the
Securities and Exchange Commission (the "Commission") on or before July 2, 1997.
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 deemed
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 the Option Shares,
when issued, sold and paid for pursuant to the permissible exercise of options
validly granted under the Option 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.
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This opinion is intended solely for the use of the addressee in connection
with the issuance of the Option 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 Securities 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 related to the Stock Option Plan in
this Registration Statement of Mikohn Gaming Corporation on Form S-8 of our
report dated February 24, 1997, appearing in the Annual Report on Form 10-K of
Mikohn Gaming Corporation for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Las Vegas, Nevada
June 30, 1997
