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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMERICAS GAMING INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 06-1189563
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(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
690 South Rock Boulevard, Reno, Nevada 89502
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 Par Value
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following summary descriptions of capital stock of the Company are
qualified in their entirety by reference to the Company's Certificate of
Incorporation, as amended and restated (the "Certificate of Incorporation"),
Certificate of Designation, and Bylaws, a copy of each of which is filed as an
exhibit to the Registration Statement.
COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of
25,000,000 shares of Common Stock, par value of $.001 per share. Each share of
Common Stock entitles the holder thereof to one vote in the election of
directors and all other matters submitted to a vote of the Company's
stockholders. Common stockholders do not have cumulative voting rights. Holders
of Common Stock are entitled to share ratably in all dividends declared by the
Board of Directors and in all assets available for distribution upon
liquidation. No holder of the Company's capital stock has any preemptive right
to subscribe for or purchase additional shares of the Company's stock.
PREFERRED STOCK
The Certificate of Incorporation authorizes the issuance of 5,000,000
shares of Preferred Stock. The Board of Directors, within the limitations and
restrictions contained in the Certificate of Incorporation and without further
action by the Company's stockholders, has the authority to issue shares of
Preferred Stock from time to time in one or more series and to fix the number of
shares and the relative rights, conversion rights, voting rights, and terms of
redemption, liquidation preferences and any other preferences, special rights
and qualifications of any such series. Any issuance of Preferred Stock could,
under certain circumstances, have the effect of delaying, deferring or
preventing a change in control of the Company and may adversely affect the
rights of holders of Common Stock. The Company has no present plans to issue any
shares of Preferred Stock other than the 10% Cumulative Convertible Preferred
Stock described below.
10% CUMULATIVE CONVERTIBLE PREFERRED STOCK
The Board of Directors has authorized the issuance of 1,000,000 shares
of 10% Cumulative Convertible Preferred Stock (the "10% Preferred"), 512,500
shares of which were issued and outstanding on June 15, 1996. The 10% Preferred
ranks senior to the Common Stock of the Corporation in dividend rights and
liquidation preference. The holders of the 10% Preferred shall be entitled to
receive, out of any assets of the Corporation legally available therefor,
cumulative dividends at a rate of 10% per annum (the "Dividend Rate") on the
total dollar amount of the consideration paid (the "Original Purchase Price") to
the Corporation for each share of 10% Preferred (the "Dividend Amount"). Such
dividends shall be payable quarterly on the Quarterly Dividend Payment Date (as
hereinafter defined), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share of 10% Preferred. Dividends on each share of
10% Preferred shall accrue and be cumulative from the date of issuance thereof
to the Redemption Date (as hereinafter defined) or the Conversion Date (as
hereinafter defined) of each such share, as applicable and whichever first
occurs, whether or
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not there shall be profits, surplus or other funds of the Corporation legally
available for the payment of such dividends at the time such dividends shall
accrue or become due and whether or not such dividends are declared. Dividends
shall be payable on each share of 10% Preferred on the first day of each July,
October, January and April of each year (the "Quarterly Dividend Payment Date"),
commencing July 1, 1996, to the holder of record on the date thirty (30) days
prior to such Quarterly Dividend Payment Date. Dividends on the 10% Preferred
shall be paid in cash. An amount of cash from the proceeds of the sale of the
10% Preferred that is sufficient to pay dividends on the 10% Preferred for the
first four (4) quarters following the Original Issue Date shall be held in an
escrow account for that purpose. Following the first four Quarterly Dividend
Payment Dates, the Corporation shall pay all future dividends from funds of the
Corporation legally available therefor. If there are not legally available funds
sufficient to pay the entire Dividend Amount owing, the legally available funds
shall be distributed ratably to the record holders and the balance of the
Dividend Amount shall be in arrears and shall be paid as soon as sufficient
legal funds become available.
Except as set forth below and except where voting rights are required
by law, holders of 10% Preferred shall have no voting rights and their consent
shall not be required for taking any corporate action. Without first obtaining
the affirmative vote or written consent of the holders of not less than a
majority of the outstanding shares of the 10% Preferred, the Corporation may not
(a) alter or change any rights, privileges or preferences of the 10% Preferred;
(b) increase or decrease the authorized number of shares of 10% Preferred; or
(c) amend or waive any provision of the Amended Certificate or Bylaws of the
Corporation relative to the 10% Preferred.
Whenever quarterly dividends or other dividends or distributions
payable on the 10% Preferred are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares of
10% Preferred outstanding shall have been paid in full or set aside for payment,
the Corporation shall not: (a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the 10% Preferred; (b) declare or pay dividends
on, make any other distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
10% Preferred, except dividends paid ratably on the 10% Preferred and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled; or (c)
redeem or purchase or otherwise acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the 10% Preferred, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the 10% Preferred.
At any time, the holders of the 10% Preferred shall have the right, at
their option, to convert any number of shares of 10% Preferred into shares of
Common Stock. Each share of 10% Preferred to be converted shall be convertible
into the number of fully paid and nonassessable shares of Common Stock
determined by dividing the Original Purchase Price (plus accrued but unpaid
dividends) by $3.333 (the "Conversion Price"). Commencing on the one year
anniversary of the Original Issue Date, each share of 10% Preferred Stock (plus
all accrued but unpaid dividends) will automatically convert into that number of
shares of Common Stock in the event that the "Fair Market Value" of the Common
Stock equals or exceeds 300% of the Conversion Price for ten (10) consecutive
trading days. "Fair Market Value" shall mean the average of the closing bid and
asked prices of the
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Common Stock of the Corporation as reported in the Wall Street Journal for any
trading day (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation System or other principal
market for the Common Stock) or, in the event the Common Stock is listed on a
stock exchange, the Fair Market Value shall be the closing price of the Common
Stock of the Corporation on such exchange as reported in the Wall Street Journal
for the trading day.
The Conversion Price is subject to adjustment from time to time (a) in
the event the outstanding shares of Common Stock shall be subdivided by stock
split, stock dividends or otherwise, into a greater number of shares of Common
Stock, the Conversion Price then in effect shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased, or in the event
the outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Conversion Price then in effect shall, concurrently with the effectiveness
of such combination or consolidation, be proportionately increased, (b) in the
event that the Corporation from time to time makes or fixes a record date for
the determination of holders of Common Stock entitled to receive any
distribution (excluding any repurchases of securities by the Corporation not
made on a pro rata basis from all holders of any class of the Corporation's
securities) payable in property or in securities of the Corporation other than
shares of Common Stock, and other than as otherwise adjusted as set forth in
this paragraph or for dividends, as set forth above, then and in each such event
the holders of 10% Preferred shall receive at the time of such distribution, the
amount of property or the number of securities of the Corporation that they
would have received had their 10% Preferred been converted into Common Stock on
the date of such event, or (c) upon any liquidation, dissolution or winding up
of the Corporation, if the Common Stock issuable upon conversion of the 10%
Preferred shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for above), each share of 10% Preferred and all accrued but unpaid
dividends shall thereafter be convertible into the number of shares of stock or
other securities or property to which a holder of the number of shares of Common
Stock deliverable upon such conversion shall have been entitled upon such
reorganization or reclassification. No adjustment in the number of shares of
Common Stock into which the shares of 10% Preferred are convertible shall be
required unless such adjustment would require an increase or decrease of at
least 1/10th of a share; provided, however, that any adjustment which by reason
hereof is not required to be made shall be carried forward and taken into
account in any subsequent adjustment. Upon conversion of shares of 10%
Preferred, the Corporation may in its discretion, either pay to the holder of
the 10% Preferred all accrued but unpaid dividends on the 10% Preferred such
holder has elected to convert through the date of the conversion or convert the
dollar amount of any accrued but unpaid dividends on such shares of 10%
Preferred into Common Stock at the Conversion Price.
Subject to the superior rights of the holders of any class or series of
preferred stock ranking superior to the 10% Preferred with respect to any
liquidation, dissolution or winding up of the Corporation, Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to the holders of shares of stock ranking junior (either as to payment
of dividends or with respect to distributions upon liquidation, dissolution or
winding up) to the 10% Preferred unless, prior thereto, the holders of 10%
Preferred shall have received an amount equal to the Original Purchase Price of
the shares of 10% Preferred purchased, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment (the "10% Preferred Liquidation Preference"). Following the
payment of the full amount of the 10% Preferred Liquidation Preference, no
additional distributions shall be made to the holders of 10%
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Preferred. In the event, however, that there are not sufficient assets available
to permit payment in full of the 10% Preferred Liquidation Preference and the
liquidation preferences of all other classes and/or series of Preferred Stock,
if any, which rank on a parity with the 10% Preferred, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences.
In the event of any consolidation or merger of the Corporation with or
into another corporation, or of any sale or conveyance to another corporation of
all or substantially all the property of the Corporation, in any of which
transactions the holders of Common Stock receive shares of stock, other
securities, cash or property receivable upon such consolidation, merger, sale or
conveyance other than Common Stock, each holder of 10% Preferred then
outstanding and thereafter remaining outstanding shall have the right to convert
each share of 10% Preferred held by him into the kind and amount of shares of
stock, other securities, cash or property receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such share of 10% Preferred could have been converted immediately
prior to the record date applicable to such consolidation, merger, sale or
conveyance, and shall have no other conversion rights. In any such event,
effective provision shall be made, in the certificate of incorporation of the
resulting or surviving corporation or otherwise, so that the provisions set
forth herein for the protection of the conversion rights of the holders of the
10% Preferred shall thereafter be applicable to any such other shares of stock,
other securities, cash or property deliverable upon conversion of the shares of
the 10% Preferred remaining outstanding or other convertible stock or securities
received by the holders in place thereof, and any such resulting or surviving
corporation shall expressly assume the obligation to deliver, upon the exercise
of the conversion privilege, such shares, other securities, cash or property as
the holders of the 10% Preferred remaining outstanding, or other convertible
stock or securities received by the holders in place thereof, shall be entitled
to receive pursuant to the provisions hereof, and to make provision for the
protection of the conversion rights as above provided.
Beginning on the one year anniversary of the Original Issue Date,
unless previously converted, all or any portion of the 10% Preferred together
with all dividends accrued but unpaid on such 10% Preferred computed to the
Redemption Date (as defined below) may be redeemed on a pro rata basis by the
Corporation at its election from the holders of such 10% Preferred at any time
and from time to time. Notwithstanding the foregoing, the holders of the 10%
Preferred will have the right to convert the 10% Preferred to Common Stock for a
period of twenty (20) days following notice of redemption.
CERTAIN STATUTORY AND CHARGER PROVISIONS
Section 203 of the Delaware General Corporation Law provides, in
general, that a stockholder acquiring more than 15% of the outstanding voting
shares of a publicly-held Delaware corporation subject to the statute (an
"Interested Stockholder") may not engage in certain "Business Combinations" with
the corporation for a period of three years subsequent to the date on which the
stockholder became an Interested Stockholder unless (i) prior to such date the
corporation's board of directors approved either the Business Combination or the
transaction in which the stockholder became an Interested Stockholder; or (ii)
upon consummation of the Business Combination, the Interest Stockholder owns 85%
or more of the outstanding voting stock of the corporation (excluding shares
owned by directors who are also officers of the corporation or shares held by
employee stock option plans that do not provide employees with the right to
determine confidentially whether shares held subject to the plan will
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be tendered in a tender or exchange offer); or (iii) the Business Combination is
approved by the corporation's board of directors and authorized an annual or
special meeting of stockholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock of the corporation
not owned by the Interested Stockholder.
Section 203 of the Delaware General Corporation Law defines the term
"Business Combination" to encompass a wide variety of transactions with or
caused by an Interested Stockholder in which the Interested Stockholder receives
or could receive a benefit on other than a pro rata basis with other
stockholders, including mergers, certain asset sales, certain issuances of
additional shares to the Interested Stockholders, transactions with the
corporation which increase the proportionate interest of the Interested
Stockholder or transaction in which the Interested Stockholder receives certain
other benefits.
These provisions could have the effect of delaying, deferring or
preventing a change of control of the Company. The Company's stockholders, by
adopting an amendment to the Certificate of Incorporation or Bylaws of the
Company, may elect not to be governed by Section 203 of the Delaware General
Corporation Law, effective twelve months after adoption. Neither the Certificate
of Incorporation nor the Bylaws of the Company currently excludes the Company
from the restrictions imposed by Section 203 of the Delaware General Corporation
Law.
DIRECTOR AND OFFICER INDEMNIFICATION
Section 12 of the Company's Certificate of Incorporation limits, to the
fullest extent permitted by the Delaware General Corporation Law ("DGCL"), as
amended, directors' personal liability to the Company or its stockholders for
monetary damages or breach of fiduciary duty. Section 145 of the DGCL enables a
corporation to eliminate or limit personal liability of members of its board of
directors for violations of their fiduciary duty of care. However, Delaware law
does not permit the elimination of a director's liability for engaging in
intentional misconduct or fraud, knowingly violating a law, for any transaction
from which the director derived an improper personal benefit or for unlawfully
paying a distribution. The statute has no effect on the availability of
equitable remedies, such as an injunction or rescission, for breach of fiduciary
duty.
Section 12 of the Company's Certificate and Article X of the Company's
Bylaws require indemnification of directors and officers of the Company to the
fullest extent permitted by the DGCL for claims against them in their official
capacities, including stockholders' derivative actions.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities Act and
is, therefore, unenforceable.
TRANSFER AGENT
The Transfer Agent for the Common Stock and Common Stock is American
Stock Transfer & Trust Company, 40 Wall Street, New York, New York 10003.
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ITEM 2. EXHIBITS.
Exhibit Method of
Number Description Filing
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1 Specimen Certificate for the Common Stock Filed herewith.
2 Amended and Restated Certificate of Incorporation Filed herewith.
of the Registrant
3 Bylaws, as amended Filed herewith.
4 Certificate of Designation of 10% Cumulative Filed herewith.
Convertible Preferred Stock
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
AMERICAS GAMING INTERNATIONAL, INC.
Dated: June 20, 1996 By /s/ Bill R. Williams
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Bill R. Williams, President
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