Securities Registration: Employee Benefit Plan (s-8)
March 31 2021 - 5:24PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on March 31, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Golden Nugget Online Gaming, Inc.
(Exact name of registrant as specified in its
charter)
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Delaware
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85-3593048
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1510
West Loop South
Houston, Texas
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77027
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(Address of Principal Executive
Offices)
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(Zip Code)
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Golden Nugget Online Gaming, Inc.
2020 Incentive Plan
(Full title of the plan)
Michael Harwell
Chief Financial Officer
Golden Nugget Online Gaming, Inc.
1510 West Loop South
Houston, Texas
(Name and address of agent for service)
(713) 850-1010
(Telephone number, including area code, of agent
for service)
Copy to:
Joel L. Rubinstein
Jonathan P. Rochwarger
Elliott M. Smith
Dov Gottlieb
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
Tel: (212) 819-8200
Fax: (212) 354-8113
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated
filer
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x
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Smaller reporting company
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x
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Emerging growth company
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x
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If an emerging growth
company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration
fee
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Class A common stock, $0.0001 par value (the “Common Stock”)
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5,000,000
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(1)(2)
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$
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12.55
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(3)
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$
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62,750,000.00
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(3)
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$
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6,846.03
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(1)
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Consists of the shares
of Common Stock which are reserved for issuance under the Golden Nugget Online Gaming, Inc. 2020 Incentive Award Plan (the “Incentive
Plan”).
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(2)
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Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also includes an indeterminate
number of additional shares which become issuable under the Incentive Plan as a result of anti-dilution provisions described therein
by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration
leading to an increase in the number of outstanding shares.
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(3)
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Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) and Rule 457(h) under the Securities Act based upon the average of the high and low
prices ($12.87 - $12.22) of the Registrant’s Common Stock as reported on the Nasdaq Global Market on March 30, 2021.
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EXPLANATORY NOTE
Golden Nugget Online Gaming, Inc.
(the “Registrant”) has filed with the Securities and Exchange Commission (the “Commission”) this registration
statement on Form S-8 (this “Registration Statement”) to register under the Securities Act of 1933, as amended (the
“Securities Act”) 5,000,000 shares of Class A common stock, $0.01 par value per share (the “Common Stock”),
of the Registrant, not previously registered, issuable pursuant to the Golden Nugget Online Gaming, Inc. 2020 Incentive Award Plan
(the “Incentive Plan”).
On October 28, 2020,
the Registrant’s board of directors adopted, subject to stockholder approval, the Incentive Plan, and on December 18, 2020
(the “Effective Date”), the Incentive Plan was approved by the stockholders at the Registrant’s Special Meeting of
Stockholders. This Registration Statement registers 5,000,000 new shares of Common Stock reserved for issuance under the Incentive Plan.
Pursuant to Rule 416(a) under
the Securities Act, this Registration Statement also covers any additional shares of the Registrant’s Common Stock that become
issuable under the Incentive Plan as a result of anti-dilution provisions described therein by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares
of the Registrant’s Common Stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
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*
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As permitted by Rule 428
under the Securities Act, this Registration Statement omits the information specified in Part I of Form S-8. The documents
containing the information specified in Part I of this Registration Statement will be sent or given to each participant in the
Incentive Plan as may be required by Rule 428(b). Such documents are not required to be and are not being filed with the Commission,
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II
of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge,
upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the
statement in the preceding sentence. The written statement to participants will also indicate the availability without charge, upon
written or oral request, of other documents required to be delivered pursuant to Rule 428(b) and will include the address
and telephone number to which the request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates
by reference in this Registration Statement the following:
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the Registrant’s annual report on Form 10-K filed with the Commission on March 31, 2021 (the “Form 10-K”);
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the Registrant’s Current Report on Form 8-K, filed with the Commission on January 5, 2021; and
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the description of the Registrant’s Class A Common Stock contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission on May 3, 2019 pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as updated by Exhibit 4.2, “Description of Securities” to the Form 10-K, and any other amendment or report filed for the purpose of updating such description.
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All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered 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 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 herein or in any other 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.
Notwithstanding the foregoing,
no information is incorporated by reference in this Registration Statement where such information under applicable forms and regulations
of the Commission is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to the liabilities
of that section, unless the report or filing containing such information indicates that the information therein is to be considered “filed”
under the Exchange Act or is to be incorporated by reference in this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts
and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the
Delaware General Corporation Law authorizes and empowers the Registrant to indemnify the directors, officers, employees and agents of
the Registrant against liabilities incurred in connection with, and related expenses resulting from, any claim, action or suit brought,
or threatened to be brought, against any such person as a result of his or her relationship with the Registrant, provided that such persons
acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Registrant
and, with respect to any criminal action, provided that such persons had no reasonable cause to believe their conduct was unlawful. The
finding of either civil or criminal liability on the part of such persons in connection with such acts or events is not necessarily determinative
of the question of whether such persons have met the required standard of conduct and are, accordingly, entitled to be indemnified. The
foregoing statements are subject to the detailed provisions of Section 145 of the General Corporation Law of the State of Delaware.
Section 102(b)(7) of
the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful
dividends or unlawful stock repurchases or redemptions, or (iv) for any transaction from which the director derived an improper
personal benefit. Pursuant to Section 102(b)(7) of the Delaware General Corporation Laws, Article EIGHTH of the Registrant’s
Fourth Amended and Restated Certificate of Incorporation eliminates a director’s personal liability for monetary damages to the
Registrant and its stockholders for breaches of fiduciary duty as a director, except in circumstances involving a breach of a director’s
duty of loyalty to the Registrant or its stockholders, actions in bad faith, knowingly or intentionally violating the law, authorizing
unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or deriving improper personal benefit from his or her
actions as a director.
Article EIGHTH of the
Registrant’s Fourth Amended and Restated Certificate of Incorporation and Article VIII of the Registrant’s Amended and
Restated Bylaws provide that the Registrant shall, to the fullest extent permitted by applicable law, indemnify each person who was or
is a party or is otherwise threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director or officer of the Registrant,
or, while a director or officer of the Registrant, is or was serving at the request of the Registrant as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan , whether the basis of such proceeding is alleged action in an official capacity as a director, officer,
employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered
and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid
in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The indemnification provided for in each of
Article EIGHTH and Article VIII is expressly not exclusive of any other rights to which those seeking indemnification may have
or thereafter acquire under applicable law, the Registrant’s Fourth Amended and Restated Certificate of Incorporation, the Registrant’s
Amended and Restated Bylaws, an agreement, a vote of stockholders or disinterested directors, or otherwise, and shall inure to the benefit
of the heirs, executors and administrators of such persons. Article EIGHTH and Article VIII also provide that the Registrant
may maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee, or agent of the Registrant,
or is or was serving at the request of the Registrant, as a director, officer, employee or agent of the Registrant or another corporation,
partnership, joint venture, trust, or other enterprise against any expense, liability loss asserted against and incurred by such person
in any such capacity.
In
addition, the Registrant maintains an insurance policy on behalf of itself and on behalf of the directors and officers thereof, covering
certain liabilities that may arise as a result of the actions of the directors and officers. The Registrant has also entered into agreements
with certain directors and officers affirming the Registrant’s obligation to indemnify them to the fullest extent permitted by
law and providing various other protections.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
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Description
of Documents
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4.1
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Fourth
Amended and Restated Certificate of Incorporation of the Registrant, incorporated herein by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 001-38893) filed with the Commission on January 5, 2021.
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4.2
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Amended
and Restated Bylaws of the Registrant, incorporated herein by reference to Exhibit 3.2 of the Registrant’s Current Report
on Form 8-K (File No. 001-38893) filed with the Commission on January 5, 2021.
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4.3
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Warrant
Agreement, dated May 6, 2019, between the Company and Continental Stock Transfer & Trust Company, as warrant agent
(incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed by the Company
on May 9, 2019).
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5.1
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Opinion of White & Case LLP with respect to the legality
of the Common Stock being registered (filed herewith).
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23.1
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Consent
of Marcum LLP, independent registered accounting firm for Golden Nugget Online Gaming, Inc. (filed herewith).
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23.2
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Consent
of White & Case LLP (included in Exhibit 5.1 to this Registration Statement).
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24.1
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Power
of Attorney (included on the signature page to this Registration Statement).
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99.1
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Golden
Nugget Online Gaming, Inc. 2020 Incentive Award Plan, incorporated herein by reference to Exhibit 10.9 of the Registrant’s
Current Report on Form 8-K filed with the Commission on January 5, 2021.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1)
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to file, during any period
in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement; and
(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 paragraphs (1)(i) and (1)(ii) do not apply the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
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(2)
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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; and
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(3)
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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.
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(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, Texas, on the 31st day of March, 2021.
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GOLDEN NUGGET ONLINE GAMING, INC.
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By:
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/s/
Michael Harwell
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Name:
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Michael Harwell
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Title:
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Chief Financial Officer
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael Harwell and Tillman J.
Fertitta, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all amendments to the Registration Statement on Form S-8
of Golden Nugget Online Gaming, Inc. (including post-effective amendments thereto), and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to
this Registration Statement or any amendments hereto in the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes,
may lawfully do or cause to be done by virtue thereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title of Capacities
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Date
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/s/ Tilman J. Fertitta
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Chairman and Chief Executive Officer (Principal Executive Officer)
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March 31, 2021
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Tilman J. Fertitta
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/s/ Michael Harwell
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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March 31, 2021
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Michael Harwell
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/s/ Richard H. Liem
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Director
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March 31, 2021
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Richard H. Liem
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/s/ Steven L. Scheinthal
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Director
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March 31, 2021
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Steven L. Scheinthal
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/s/ G. Michael Stevens
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Director
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March 31, 2021
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G. Michael Stevens
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/s/ Michael Chadwick
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Director
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March 31, 2021
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Michael Chadwick
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/s/ Scott Kelly
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Director
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March 31, 2021
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Scott Kelly
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