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)
Delaware |
|
85-3593048 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
1510
West Loop South
Houston, Texas |
|
77027 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
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.
Large accelerated filer |
¨ |
Accelerated filer |
¨ |
|
|
|
|
Non-accelerated
filer |
x |
Smaller reporting company |
x |
|
|
|
|
|
|
Emerging
growth company |
x |
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
Title of securities to be
registered |
|
Amount
to be
registered |
|
|
Proposed
maximum
offering price
per share |
|
|
Proposed
maximum
aggregate
offering price |
|
|
Amount of
registration
fee |
|
Class A common stock, $0.0001
par value (the “Common Stock”) |
|
|
5,000,000 |
(1)(2) |
|
$ |
12.55 |
(3) |
|
$ |
62,750,000.00 |
(3) |
|
$ |
6,846.03 |
|
(1) |
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”). |
(2) |
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. |
(3) |
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. |
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.*
* |
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. |
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:
|
● |
|
the Registrant’s annual report on Form 10-K
filed with the Commission on
March 31, 2021 (the “Form 10-K”); |
|
● |
|
the
Registrant’s Current Report on Form 8-K, filed with the Commission
on
January
5, 2021;
and |
|
● |
|
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. |
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 |
|
Description
of Documents |
|
|
|
4.1 |
|
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. |
|
|
|
4.2 |
|
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. |
|
|
|
4.3 |
|
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). |
|
|
|
5.1 |
|
Opinion of White & Case LLP with
respect to the legality of the Common Stock being registered (filed
herewith). |
|
|
|
23.1 |
|
Consent
of Marcum LLP, independent registered accounting firm for Golden
Nugget Online Gaming, Inc. (filed herewith). |
|
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|
23.2 |
|
Consent
of White & Case LLP (included in Exhibit 5.1 to this
Registration Statement). |
|
|
|
24.1 |
|
Power
of Attorney (included on the signature page to this
Registration Statement). |
|
|
|
99.1 |
|
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. |
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.
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;
|
(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; and |
|
(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
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.
|
GOLDEN
NUGGET ONLINE GAMING, INC. |
|
|
|
|
By: |
/s/
Michael Harwell |
|
Name: |
Michael
Harwell |
|
Title: |
Chief
Financial Officer |
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.
Signature |
|
Title
of Capacities |
|
Date |
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/s/ Tilman J. Fertitta |
|
Chairman and Chief Executive Officer
(Principal Executive Officer) |
|
March 31, 2021 |
Tilman J. Fertitta |
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|
/s/ Michael Harwell |
|
Chief Financial Officer (Principal Financial
Officer and Principal Accounting Officer) |
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March 31, 2021 |
Michael Harwell |
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/s/ Richard H. Liem |
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Director |
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March 31, 2021 |
Richard H. Liem |
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/s/ Steven L. Scheinthal |
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Director |
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March 31, 2021 |
Steven L. Scheinthal |
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/s/ G. Michael Stevens |
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Director |
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March 31, 2021 |
G. Michael Stevens |
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/s/ Michael Chadwick |
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Director |
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March 31, 2021 |
Michael Chadwick |
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/s/ Scott Kelly |
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Director |
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March 31, 2021 |
Scott Kelly |
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