<PAGE> 1
Registration No. __________
As filed with the Securities and Exchange Commission on November 7, 1997
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
FITZGERALDS GAMING CORPORATION
------------------------------
(Exact name of registrant as specified in its charter)
Nevada 88-0329170
------------------------------- -------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
301 Fremont Street, Las Vegas, Nevada 89101
---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
Stock Option Incentive Plan
---------------------------
(Full title of the plans)
Philip D. Griffith
Fitzgeralds Gaming Corporation, 301 Fremont Street, Las Vegas, Nevada 89101
(702) 388-2400
--------------------------------------------------------------------- -----
(Name, address and telephone number of agent for service)
Copy to: Theodore H. Latty, Esq.
Hughes Hubbard & Reed LLP
350 South Grand Avenue
Los Angeles, CA 90071-3442
CALCULATION OF REGISTRATION FEE
<TABLE>
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered* Per Share** Offering Price** Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, 1,000,000 $1.00 $1,000,000. $303.03
par value shares
$.01 per share
- -----------------------------------------------------------------------------------------------------------------
(see footnotes on following page)
</TABLE>
<PAGE> 2
FOOTNOTES
* This Registration Statement also relates to such indeterminate number
of additional shares as may be issuable pursuant to stock splits,
stock dividends, or similar transactions.
** The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for
the purpose of determining the registration fee pursuant to Rule
457(h) under the Securities Act of 1933. The Common Stock is
registered under the Securities Exchange Act of 1934, but there is no
public trading market for the Common Stock. The registration fee is
based on a price of $1.00 per share, which is the fair market value of
the Common Stock as determined by the Board of Directors of the
registrant.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Fitzgeralds Gaming
Corporation (the "Company") under the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31, 1996;
and
(c) The description of the Company's Common Stock
contained in the Company's registration statement therefor and
subsequent amendments thereof.
All documents filed by the Company 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 hereby 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 a part hereof from the date
of the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 78.751 of the Nevada General Corporation Law (the
"GCL") and Article VIII of the By-laws of the Company contain provisions for
indemnification of officers and directors of the Company and Section 78.751 of
the GCL also contains provisions permitting the indemnification of employees
and agents of the Company. The provisions of the By-laws permit the Company to
indemnify officers and directors to the full extent permitted under law. Each
person will be indemnified in any proceeding if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interest of the Company. Indemnification
<PAGE> 4
would cover expenses including attorneys' fees, judgments, fines and amounts
paid in settlement. The Company has also entered into separate indemnification
agreements with certain of its officers and directors. These indemnification
agreements are separate and independent of the indemnification rights under the
By-laws and are irrevocable.
The Company's Articles of Incorporation eliminate each
director's and officer's liability to the Company or its stockholders for
damages for breach of fiduciary duty except for (i) acts or omissions which
involve intentional misconduct, fraud, or a knowing violation of law or (ii)
the payment of dividends in violation of Section 78.300 of the GCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Number Description Method of Filing
------ ----------- ----------------
<S> <C> <C>
4.1 Articles of Incorporation, as amended, and Filed as Exhibit 3(a) to the Company's
By-Laws of the Company Registration Statement on Form S-1, No. 33-
94624, which became effective on December
13, 1995 (the "Form S-1")
4.2 Fitzgeralds Gaming Corporation Stock Option Filed herewith
Incentive Plan
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Deloitte & Touche LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Included in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
</TABLE>
Item 9. Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
<PAGE> 5
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the information
set forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Las Vegas, State of
Nevada, on this 7th day of November, 1997.
FITZGERALDS GAMING CORPORATION
By: /s/ Philip D. Griffith
----------------------------------------------
Name: Philip D. Griffith
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on this 6th day of November, 1997.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Philip D. Griffith President, Chief Executive Officer and Director (principal
----------------------------------------------- executive officer)
Philip D. Griffith
/s/ Michael E. McPherson Executive Vice President, Chief Financial Officer and
----------------------------------------------- Secretary (principal financial and accounting officer)
Michael E. McPherson
/s/ Michael A. Ficaro Director
-----------------------------------------------
Michael A. Ficaro
/s/ Patricia W. Becker Director
-----------------------------------------------
Patricia W. Becker
</TABLE>
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Method of Filing
------ ----------- ----------------
<S> <C> <C>
4.1 Articles of Incorporation, as amended, and Filed as Exhibit 3(a) to the Company's
By-Laws of the Company Registration Statement on Form S-1, No. 33-
94624, which became effective on December
13, 1995 (the "Form S-1")
4.2 Fitzgeralds Gaming Corporation Stock Option Filed herewith
Incentive Plan
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Deloitte & Touche LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Included in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
</TABLE>
<PAGE> 1
EXHIBIT 4.2
FITZGERALDS GAMING CORPORATION
STOCK OPTION INCENTIVE PLAN
1. PURPOSE
The purpose of the Fitzgeralds Gaming Corporation Stock Option
Incentive Plan is to further the interests of Fitzgeralds Gaming Corporation, a
Nevada corporation (the "Company"), and its Subsidiaries by encouraging and
enabling selected officers, 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, and the regulations promulgated thereunder.
(c) "Committee" shall mean the Stock Option or Compensation
Committee appointed by the Board to administer the Plan, or if no committee has
been appointed or the Board elects to retain the power to administer the Plan,
reference to "Committee" shall be deemed to refer to the Board.
(d) "Common Stock" shall mean the Company's Common Stock, $0.01
par value.
(e) "Company" shall mean Fitzgeralds 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 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.
(j) "Non-Qualified Option" shall mean an Option granted under the
Plan which does not qualify as, or is not designated 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.
<PAGE> 2
(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 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 Fitzgeralds Gaming Corporation Stock
Option Incentive Plan, as amended from time to time.
(q) "Relationship" shall mean that the Optionee is or has agreed
to become an officer, 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 an 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 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 of which members are both
Non-Employee Directors and Outside Directors. The Committee may delegate some
or all of its powers under the Plan to an executive officer of the Company,
except with respect to Option grants to executive officers or directors.
(b) Any action of the Committee with respect to the administration
of the Plan shall be taken by majority vote or by unanimous written consent of
its members.
(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 for which an Option may be exercised at any one time, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the time and nature of a participant's 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.
-2-
<PAGE> 3
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 1,000,000. 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 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. In addition, the Committee may make a one-time
grant of Options to former employees in substitution for options previously
granted to them, for the same number of shares and having substantially the
same terms and conditions as the options they are replacing. The Committee
shall determine the persons to whom 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
any calendar year exceed 100,000 shares.
6. PURCHASE PRICE
The purchase price of each share covered by each Option shall be
determined by the Committee; provided, however, that in the case of an
Incentive Option such price 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; and provided further that if at the 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 than 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 an Option and all rights thereunder shall be
determined by the Committee; provided, however, that the expiration date of an
Incentive Option must be within 10 years from the date on which the Incentive
Option is granted, unless at the time the Incentive Option is granted the
Optionee owns or would be considered to own by reason of Section 424(d) of the
Code more than 10% of the total combined voting power of all classes of stock
of the Company or any Subsidiary or Parent Corporation of the Company, in which
case the expiration date of such Incentive Option must be within five years
from the date of grant. In the event the Committee does
-3-
<PAGE> 4
not specify the expiration date of an Option, the expiration date shall be 10
years from the date on which the Option was granted; provided, however, that if
at the 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 than 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 of grant. Options shall be subject to earlier
termination as provided herein.
8. EXERCISE OF OPTIONS
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 than 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 payments 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 or
otherwise.
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 hereof.
(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 which have been held by the
Optionee (or other person entitled to exercise the Option) for at least six
months. 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 automated quotation
system 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
-4-
<PAGE> 5
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 Optionee.
11. CONTINUANCE OF RELATIONSHIP
Nothing contained in the Plan or in any Option granted under the Plan
shall confer upon any Optionee any rights 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 determine otherwise at any time with
respect to any particular Option granted hereunder:
(a) If an Optionee ceases to have a Relationship for any reason
other than his death or Permanent Disability or termination for cause, 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 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 Relationship and
provided that such Option has not expired or otherwise terminated as provided
herein. A leave of absence approved in writing by the Company 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 Optionee'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 Company 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) 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.
-5-
<PAGE> 6
13. DEATH OR PERMANENT DISABILITY OF OPTIONEE
Except as the Committee may expressly determine otherwise at any time
with respect to any particular 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 executor or administrator
of the Optionee's estate or 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 in the event of his
death, 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, 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 transaction or change in corporate structure affecting the
Common Stock such that an adjustment is determined by the Board to be
appropriate under the Plan, the aggregate number of shares of Common Stock
subject to the Plan as provided in Section 4 hereof, the shares of Common Stock
subject to issued and outstanding Options 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 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, provided, however, that such adjustment shall
not result in the Company being required to issue or sell any fractional
shares. The Board's determination as to which adjustments shall be made and
the extent thereof shall be final, binding and conclusive.
(b) Notwithstanding the provisions 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 is a subsidiary of another corporation), or
upon a sale of all or substantially all of the assets of the Company to another
-6-
<PAGE> 7
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.
17. AMENDMENT AND TERMINATION OF PLAN
(a) The Board may from time to time suspend or terminate the Plan
with respect to any shares at the time not subject to Options, or amend or
revise the terms of the Plan. Amendments may be made without stockholder
approval, except as required to satisfy applicable laws or regulations or the
requirements of any stock exchange or automated quotation system on which the
Common Stock is listed.
(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 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.
-7-
<PAGE> 1
EXHIBIT 5.1
[HUGHES HUBBARD & REED LLP LETTERHEAD]
Fitzgeralds Gaming Corporation
301 Fremont Street, 12th Floor
Las Vegas, Nevada 89101
Re: Registration Statement on Form S-8
Gentlemen:
We have represented Fitzgeralds Gaming Corporation, a Nevada
corporation (the "Company"), as special securities counsel in connection with
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 1,000,000 shares of the Company's common stock, $.01 par value (the
"Shares"), issuable upon exercise of stock options granted under the Fitzgeralds
Gaming Corporation Stock Option Incentive Plan (the "Plan"). The Shares are
being registered by the Company on a Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission (the "Commission") on or about
November 7, 1997 (the "Registration Statement").
As such special securities counsel, and for the purpose of rendering
this opinion, we have reviewed such corporate records and other documents as we
have deemed necessary and appropriate to render the opinion contained herein. In
addition, we have consulted with officers and other representatives of the
Company and have obtained such representations with respect to such matters of
fact as we have deemed necessary or advisable; however, we have not necessarily
independently verified the content of factual statements made to us in
connection therewith or the veracity of such representations. We have assumed
without independent verification or investigation (i) the genuineness of all
signatures, (ii) the authenticity of all documents submitted to us as originals
and (iii) the conformity to authentic original documents of all documents
submitted to us as certified, conformed or photostatic copies.
On the basis of the foregoing, such examinations of law and such other
information as we have deemed relevant under the circumstances, we are of the
opinion as of the date hereof that the Shares, when issued and sold pursuant to
the Plan, will be validly issued, fully paid and nonassessable shares of common
stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules or regulations of the Commission
promulgated thereunder.
Very truly yours,
HUGHES HUBBARD & REED LLP
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Fitzgeralds Gaming Corporation on Form S-8 of our
report dated March 14,1997, appearing in the Annual Report on Form 10-K/A of
Fitzgeralds Gaming Corporation for the year ended December 31, 1996 and to the
reference to us under the heading "Experts" in the Prospectus relating to this
Registration Statement.
DELOITTE & TOUCHE LLP
Las Vegas, Nevada
November 6, 1997
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
FITZGERALDS GAMING CORPORATION STOCK OPTION INCENTIVE PLAN
KNOW ALL PERSONS BY THESE PRESENTS, that each of the
undersigned does hereby constitute and appoint each of Philip D. Griffith and
Michael E. McPherson, with full power of substitution, his or her true and
lawful attorney to execute in his/her name in any and all capacities any
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 relating to the Fitzgeralds Gaming
Corporation Stock Option Incentive Plan (the "Plan"), including without
limitation additional Registration Statements on Form S-8 relating to the Plan,
and any and all amendments (including post-effective amendments) to any such
Registration Statement, and to file the same, with all exhibits thereto and any
other documents in connection therewith, with the Securities and Exchange
Commission. Each such attorney and his substitutes shall have and may exercise
all powers to act hereunder. Each of the undersigned does hereby ratify and
confirm all that said attorney and agent shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his/her
name hereto as of this 6th day of November, 1997.
/s/ Philip D. Griffith /s/ Michael E. McPherson
- ------------------------------- -------------------------------
Philip D. Griffith Michael E. McPherson
/s/ Michael A. Ficaro /s/ Patricia W. Becker
- ------------------------------- -------------------------------
Michael A. Ficaro Patricia W. Becker
