S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission March 30, 1995 Registration No. 33- ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SHOWBOAT, INC. (Exact name of registrant as specified in its charter) NEVADA 88-0090766 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 2800 FREMONT STREET LAS VEGAS, NEVADA 89104 (Address of registrant's principal executive offices, including zip code) SHOWBOAT, INC. 1994 EXECUTIVE LONG TERM INCENTIVE PLAN (Full title of the plan) JOHN N. BREWER, ESQ. JOHN C. JEPPSEN, ESQ. KUMMER KAEMPFER BONNER & RENSHAW SEVENTH FLOOR 2800 HOWARD HUGHES PARKWAY LAS VEGAS, NEVADA 89109 (702) 792-7000 (Name, address, including zip code, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE Proposed Proposed Amount of Title of each class of Amount to maximum maximum Registration Securities to be registered be offering aggregate Fee registered price per offering (1) share(2) price(2) ----------------------------- ---------- --------- -------------- ----------- Common Stock, $1.00 par value 2,000,000 $18.253 $36,506,000.00 $12,590.00 (1)Represents the maximum number of shares which may be distributed pursuant to this Registration Statement, absent recapitalization provisions of the Plan. (2)Computed pursuant to Rule 457(h) solely for purposes of determining the registration fee, based upon (i) the price of the Registrant's common stock as reported on the New York Stock Exchange on the date of grant of restricted shares outstanding as of the date hereof (360,000 shares at $16.75 and 41,500 shares at $14.50); (ii) the price at which options to purchase shares outstanding as of the date hereof may be exercised (1,106,000 shares at $20.25 per share and 156,000 shares at $14.50) and (iii) with respect to the balance of the shares that may be sold under the Plan, the average of the high and low sale prices of the Registrant's common stock as reported on the New York Stock Exchange on March 24, 1995, or $15.50 per share.
PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Showboat, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1994, including all amendments; and (b) The description of the Company's common stock, $1.00 par value (the "Common Stock"), set forth under the caption "Description of Registrant's Securities to be Registered" in the Company's Registration Statement on Form 8, Amendment No. 1, as filed with the Commission on July 7, 1992, and all amendments and reports filed thereafter for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") prior to the filing of a post- effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities remaining unsold, shall be deemed to be incorporated by reference herein 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. The validity of the issuance of the securities offered hereby is being passed upon for the Company by Kummer Kaempfer Bonner & Renshaw, Las Vegas, Nevada. H. Gregory Nasky, of counsel to the law firm of Kummer Kaempfer Bonner & Renshaw, is a Director and Secretary of the Company. John N. Brewer, a member of the law firm of Kummer Kaempfer Bonner & Renshaw, is an Assistant Secretary of the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. ARTICLES OF INCORPORATION. Section 78.037 of the Nevada Revised Statutes and Article XI of the Company's Articles of Incorporation contain provisions that eliminate or limit, in certain situations, the personal liability of a director or officer of the Company. The Articles of Incorporation provide that a director or officer of the Company will not be personally liable to the Company or its shareholders for breach of his fiduciary duty as a director or officer, but Article XI does not eliminate or limit the director's or officer's liability for: (i) acts or omissions which involve intentional misconduct, fraud or a knowing violation of law; or (ii) the unlawful payment of distributions. BYLAWS. Section 78.751 of the Nevada Revised Statutes and Article VIII of the Company's Bylaws contain provisions for the indemnification of directors, officers, employees or agents of the Company. The Company's Bylaws provide that the Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a 2 director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. Such indemnification may be against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner which the individual reasonably believed to be in or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. Where the action or suit for which indemnification is sought is one brought by or in the name of the Company to procure a judgment in the Company's favor, no indemnification shall be made in respect to any claim, issue, for matter as to which such person has been adjudged to be liable or negligent in the performance of such person's duty to the Company unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification, despite the adjudication of liability. The indemnification discussed above shall only be made where a determination is made that such indemnification is proper in the circumstances because such person has met the applicable standard of conduct discussed above. Such determination is to be made (1) by a majority vote of a quorum of disinterested members of the Board of Directors, (2) by independent legal counsel in a written opinion, if such a quorum does not exist or if the disinterested members of the Board of Directors so direct, or (3) by the shareholders. To the extent that a director, officer, employee or agent of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding of the type discussed above, the Bylaws state that such person shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred by him in connection with such defense. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall be ultimately determined that he is entitled to indemnification by the Company as authorized by the Bylaws. The indemnification described above does not exclude any other rights to which a person seeking indemnification may be entitled under any agreement, vote of shareholders or disinterested directors under the Articles of Incorporation or Bylaws, if amended to so provide in the future or otherwise, and the above right shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors, and administrators of such person. The Company's Bylaws also indemnify the spouses of the Company's directors and officers for such director's or officer's acts if such spouses were or are a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding due to the fact that they are married to a director or officer of the Company. Each spouse's indemnification rights are governed by Article VIII of the Bylaws. INDEMNIFICATION AGREEMENTS. The Company has entered into indemnification agreements with each member of the Board of Directors and certain officers of the Company (individually, an "Indemnified Person"). Each agreement provides that the Company will hold harmless and indemnify such Indemnified Person in certain specified instances and, in any event, to the fullest extent authorized or permitted by law. However, no such specified indemnity shall be paid by the Company if payment is actually made to such Indemnified Person under an insurance policy (except in the event that an award is in excess of the insured amount, in which case the payment may be made for such excess); aggregate losses do not exceed $1,000; the Indemnified Person is indemnified by the Company otherwise than pursuant to the indemnity agreement; a judgment is rendered against such Indemnified Person for the payment of dividends or other 3 distributions in violation of Section 78.300 of the Nevada Revised Statutes, as amended; a judgment is rendered against such Indemnified Person for "short swing" profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar state and local laws; such Indemnified Person's conduct is finally adjudged by a court of competent jurisdiction to have involved intentional misconduct, fraud or a knowing violation of the law and such conduct was material to the cause of action; a judgment is rendered against such person by a court of competent jurisdiction, after exhaustion of all appeals therefrom, and the court determines that such Indemnified Person is not entitled to indemnity; or, except as otherwise provided in such agreement, the Indemnified Person initiates or maintains an action against the Company or the Company's directors, of officers, employees or other agents. All agreements and obligations of the Company contained in the indemnity agreement shall continue during the period the person is serving in such position and shall continue so long as such person shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding. ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. EXHIBIT NUMBER DESCRIPTION 4.01 Specimen Common Stock Certificate for the Company's Common Stock is incorporated herein by reference from Amendment No. 1 to the Company's Registration Statement on Form S-3 filed July 8, 1994 (file no. 33-54325), Item 16, Exhibit 4.01. 4.02 Showboat, Inc. 1994 Executive Long Term Incentive Plan is incorporated herein by reference from the Company's Form 10-K for the Year Ended December 31, 1994, Part IV, Item 14(a)(3), Exhibit 10.37. 4.03 Indenture relating to the 9 1/4% First Mortgage Bonds Due 2008, including form of Bond, is incorporated herein by reference from the Company's Form 8-K dated May 18, 1993, Item 5, Exhibit 28.01. First Supplemental Indenture to the 9 1/4% First Mortgage Bonds Due 2008 is incorporated herein by reference from the Company's Form 10-K for the Year Ended December 31, 1994, Part IV, Item 14(a)(c), Exhibit 4.02. 4.04 Indenture relating to the 13% Senior Subordinated Notes due 2009, including form of Note, is incorporated by reference from the Company's Form 8-K dated August 10, 1994, Item 5, Exhibit 28.01. 5.01 Opinion of Kummer Kaempfer Bonner & Renshaw re: legality of the securities being registered. 23.01 Consent of KPMG Peat Marwick LLP. 23.02 Consent of Kummer Kaempfer Bonner & Renshaw included in Exhibit 5.01. 24.01 Power of Attorney (included on the signature page hereto). 4 ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which the offers or sales are being made, a post-effective amendment to this registration statement 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933 (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 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 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 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 of 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. 5 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all 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 March 28, 1995. SHOWBOAT, INC. By: J. Kell Houssels, III President and Chief Executive Officer (Principal Executive Officer) POWER OF ATTORNEY The undersigned directors and officers of Showboat, Inc. hereby appoint Leann Schneider or John N. Brewer as attorney-in- fact for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act any and all amendments (including post-effective amendments) and exhibits to this registration statement and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary or desirable, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this registration statement has been signed by the persons in the capacities and on the date indicated. Signers Title Date Chairman of the March 28, 1995 /s/J.K. Houssels Board J.K. Houssels Director, President March 28, 1995 /s/ J. Kell Houssels,III and J.Kell Houssels, III Chief Executive Officer (Principal Executive Officer) Vice President- March 28, 1995 /s/Leann Schneider Finance Leann Schneider and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) 6 /s/William C. Richardson Director March 28, 1995 William C. Richardson /s/John D. Gaughan Director March 28, 1995 John D. Gaughan /s/Jeanne S. Stewart Director March 28, 1995 Jeanne S. Stewart /s/Frank A. Modica Director March 28, 1995 Frank A. Modica Director and March 28, 1995 /s/H. Gregory Nasky Secretary H. Gregory Nasky /s/George A. Zettler Director March 28, 1995 George A. Zettler Director Carolyn M. Sparks 7 EXHIBIT INDEX EXHIBIT DESCRIPTION SEQUENTIAL NUMBER PAGE NUMBER 4.01 Specimen Common Stock Certificate for the Company's Common Stock is incorporated herein by reference from Amendment No. 1 to the Company's Registration Statement on Form S-3 filed July 8, 1994 (file no. 33-54325), Item 16, Exhibit 4.01. 4.02 Showboat, Inc. 1994 Executive Long Term Incentive Plan is incorporated herein by reference from the Company's Form 10-K for the Year Ended December 31, 1994, Part IV, Item 14(a)(3), Exhibit 10.37. 4.03 Indenture relating to the 9 1/4% First Mortgage Bonds Due 2008, including form of Bond, is incorporated herein by reference from the Company's Form 8-K dated May 18, 1993, Item 5, Exhibit 28.01. First Supplemental Indenture to the 9 1/4% First Mortgage Bonds Due 2008 is incorporated herein by reference from the Company's Form 10-K for the Year Ended December 31, 1994, Part IV, Item 14(a)(3), Exhibit 4.02. 4.04 Indenture relating to the 13% Senior Subordinated Notes Due 2009, including form of Note, is incorporated by reference from the Company's Form 8-K dated August 10, 1995, Item 5, Exhibit 28.01. 5.01 Opinion of Kummer Kaempfer Bonner & Renshaw re: 9 legality of the securities being registered. 23.01 Consent of KPMG Peat Marwick LLP. 10 23.02 Consent of Kummer Kaempfer Bonner & Renshaw included in Exhibit 5.01. 24.01 Power of Attorney (included on the signature page hereto). 8 EX-5.01 2 OPINION LETTER March 30, 1995 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20001 Re: Showboat, Inc. 1994 Executive Long Term Incentive Plan ("1994 LTIP") Registration Statement on Form S-8 Registration No. 33-_________ Gentlemen: As counsel to Showboat, Inc., a Nevada corporation (the "Company"), we are rendering this opinion in connection with the registration by the Company of 2,000,000 shares of Common Stock, $1.00 par value (the "Shares"), of the Company and the proposed sale thereof. We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. Based on such examination and subject to the limitations hereinabove provided, we are of the opinion that the Company has the full power and authority under the laws of the state of Nevada, and under its Articles of Incorporation and Bylaws, as amended, to issue the Shares and that such Shares are validly authorized Shares of Common Stock of the Company, and when issued in accordance with the 1994 LTIP, will be legally issued, fully paid and not assessable and not subject to any preemptive or similar rights. We hereby consent to the filing of the foregoing opinion as an exhibit to the above-referenced Registration Statement filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and to the use of our name in such Registration Statement and in the related Prospectus under the heading "Legal Matters." Very truly yours, KUMMER KAEMPFER BONNER & RENSHAW EX-23.01 3 CONSENT OF KPMG PEAT MARWICK INDEPENDENT AUDITORS' CONSENT The Board of Directors Showboat, Inc. We consent to the use of our report incorporated by reference herein. Our report refers to a change in method of accounting to adopt the provisions of the Financial Accounting Standards Board's Statement of Financial Accounting Standards No. 109, ACCOUNTING FOR INCOME TAXES. /s/KPMG PEAT MARWICK LLP Las Vegas, Nevada March 30, 1995