As filed with the Securities and Exchange Commission on July 19, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLAYAGS, INC.
(Exact name of Registrant as specified in its charter)
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Nevada
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46-3698600
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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6775 Edmond St., Ste #300
Las Vegas, NV 89118
(Address, including zip code, of Registrant’s principal executive offices)
PlayAGS, Inc. Omnibus Incentive Plan, as amended
(Full title of the plan)
Victor Gallo
PlayAGS, Inc.
c/o AP Gaming Holdco, Inc.
6775 Edmond St., Ste #300
Las Vegas, NV 89118
(702) 722-6700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
COPIES TO:
Monica K. Thurmond, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
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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☐
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Smaller reporting company
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☐
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Emerging growth company
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☒
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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. ☒
EXPLANATORY NOTE
The Company’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission (“SEC”) on January 26, 2018, File No. 333-222740, is hereby incorporated by reference. By such Registration Statement, the Company registered 3,500,000 shares of its common stock, par value $0.01 per share (“Common Stock”), that were reserved for awards granted under the Company’s 2014 Long-Term Incentive Plan and the Company’s 2018 Omnibus Incentive Plan (the “2018 Plan”).
On May 8, 2020, the board of directors of the Company approved an amendment to the 2018 Plan to increase the number of shares of Common Stock authorized for issuance thereunder from 1,607,389 shares to 4,607,389 shares, an increase of 3,000,000 shares (the “2020 Plan Amendment”), which was approved by the stockholders on July 1, 2020 at the 2020 Annual Meeting of Stockholders. The Company's Registration Statement on Form S-8 filed with the SEC on November 6, 2020, File No. 333-249929, is hereby incorporated by reference. By such Registration Statement, the Company registered 3,000,000 additional shares of its Common Stock pursuant to the 2020 Plan Amendment.
On April 28, 2022, the board of directors of the Company approved an amendment to the 2018 Plan, as amended by the 2020 Plan Amendment, to increase the number of shares of Common Stock authorized for issuance thereunder from 4,607,389 shares to 9,607,389 shares, an increase of 5,000,000 shares (the “2022 Plan Amendment”), subject to stockholder approval at the 2022 Annual Meeting of Stockholders. On July 1, 2022, the stockholders approved the 2022 Plan Amendment. This Registration Statement is to register the additional 5,000,000 shares of the Company’s Common Stock, therefore increasing the total pool of shares of the Company’s Common Stock pursuant to the 2022 Plan Amendment to 9,607,389 million shares.
Pursuant to General Instruction E to Form S-8, the contents of such earlier Registration Statement are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such earlier registration statement are modified as set forth in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed with the Commission by the Company are incorporated by reference in this Registration Statement:
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1.
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 10, 2022;
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2.
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The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 5, 2022;
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4.
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The description of the common stock set forth in the Company’s Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act on January 19, 2018, and any amendment or report filed for the purpose of updating any such description (including Exhibit 4.6 to the 2021 Annual Report).
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In addition, all reports and documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof from the date of the filing of such documents.
Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Act, PlayAGS, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Las Vegas, state of Nevada, on July 19, 2022.
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PLAYAGS, INC.
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By:
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/s/ David Lopez
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Name: David Lopez
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Title: Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Victor Gallo, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact or any of their substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration Statement and Power of Attorney have been signed on July 19, 2022, by the following persons in the capacities indicated.
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Signature
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Title
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/s/ David Lopez
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David Lopez
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Chief Executive Officer, President and Director (Principal Executive Officer)
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/s/ Kimo Akiona
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Kimo Akiona
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Chief Financial Officer, Chief Accounting Officer and Treasurer (Principal Financial and Accounting Officer)
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/s/ David Sambur
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David Sambur
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Director
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/s/ Daniel Cohen
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Daniel Cohen
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Director
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/s/ Yvette E. Landau
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Yvette E. Landau
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Director
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/s/ Adam Chibib
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Adam Chibib
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Director
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/s/ Geoff Freeman
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Geoff Freeman
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Director
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/s/ Anna Massion
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Anna Massion
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Director
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/s/ David Farahi
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David Farahi
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Director |
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Exhibit 4.1
SECOND AMENDMENT TO
PLAYAGS, INC.
OMNIBUS INCENTIVE PLAN
The Omnibus Incentive Plan (the “Plan”) of PlayAGS, Inc., a Delaware corporation (the “Company”), is hereby amended, effective as of April 28, 2022 (the “Effective Date”), as follows:
1. Amendment to Section 5(b) of the Plan. Section 5(b) of the Plan is hereby amended and restated in its entirety as follows:
“(b) Subject to Section 11 of the Plan and subsection (e) below, the following limitations apply to the grant of Awards: (i) no more than 9,607,389 shares of Common Stock may be delivered in the aggregate pursuant to Awards granted under the Plan (the “Share Pool”); (ii) no more than 9,607,389 shares of Common Stock may be delivered pursuant to the exercise of Incentive Stock Options granted under the Plan; and (iii) the maximum amount (based on the Fair Market Value of shares of Common Stock on the date of grant as determined in accordance with applicable financial accounting rules) of Awards that may be granted in any single fiscal year to any non-employee director, taken together with any cash fees paid to such non-employee director during such fiscal year, shall be $400,000; provided, that the foregoing limitation shall not apply in respect of any Awards issued to a non-employee director in lieu of payment of cash director compensation or board or committee fees or in respect of any one-time initial equity grant upon a non-employee director’s appointment to the Board.”
2. Effectiveness. In accordance with Section 13(a) of the Plan, the effectiveness of this Second Amendment to PlayAGS, Inc. Omnibus Incentive Plan (this “Amendment”) is subject to the approval of the Company’s stockholders at the Company’s 2022 Annual Meeting of Stockholders. For the avoidance of doubt, if stockholder approval is not obtained, then this Amendment shall be void ab initio and of no force and effect.
3. Effect on the Plan. This Amendment shall not constitute a waiver, amendment or modification of any provision of the Plan not expressly referred to herein. Except as expressly amended or modified herein, the provisions of the Plan are and shall remain in full force and effect and are hereby ratified and confirmed. On and after the Effective Date, each reference in the Plan to “this Plan,” “herein,” “hereof,” “hereunder” or words of similar import shall mean and be a reference to the Plan as amended hereby. To the extent that a provision of this Amendment conflicts with or differs from a provision of the Plan, such provision of this Amendment shall prevail and govern for all purposes and in all respects.
IN WITNESS WHEREOF, the undersigned, being authorized by the Board of Directors of the Company (the “Board”) to execute this Amendment, as evidenced by the approval and adoption of this Amendment by the Board, has executed this Amendment as of the date first written above.
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PLAYAGS, INC.
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By:
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/s/ Vic Gallo
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Name: Vic Gallo
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Title: Secretary
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Exhibit 5.1
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Brownstein Hyatt Farber Schreck, LLP
702.382.2101 main
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106
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July 19, 2022
PlayAGS, Inc.
6775 Edmond St., Ste. 300
Las Vegas, Nevada 89118
To the addressee set forth above:
We have acted as local Nevada counsel to PlayAGS, Inc., a Nevada corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration of an additional 5,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), issuable under the PlayAGS, Inc. 2018 Omnibus Incentive Plan (as amended to date, the “Plan”). This opinion letter is being delivered at your request pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In our capacity as such counsel, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization and issuance of the Shares as contemplated by the Plan and as described in the Registration Statement. For purposes of this opinion letter, and except to the extent set forth in the opinion expressed below, we have assumed that all such proceedings have been or will be timely completed in the manner contemplated by the Plan, and as presently proposed in the Registration Statement.
For purposes of issuing the opinion hereinafter expressed, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true copies of (i) the Registration Statement, (ii) the Plan, (iii) the Company’s articles of incorporation and bylaws, each as amended to date, and (iv) such other agreements, instruments, corporate records and other documents as we have deemed necessary or appropriate. We have also obtained from officers and other representatives and agents of the Company and from public officials, and have relied upon, such certificates, representations and assurances, and public filings, as we have deemed necessary or appropriate for the purpose of issuing this opinion letter.
Without limiting the generality of the foregoing, we have, with your permission, assumed without independent verification that (i) each natural person executing any of the documents we reviewed has sufficient legal capacity to do so; (ii) all documents submitted to us as originals are authentic, the signatures on all documents we reviewed are genuine, and all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original document; (iii) all corporate records made available to us by the Company, and all public records we have reviewed, are accurate and complete; and (iv) after any issuance of the Shares, the total number of issued and outstanding shares of Common Stock, together with the total number of shares of Common Stock then reserved for issuance or obligated to be issued by the Company pursuant to any agreement or arrangement or otherwise, including the Plan, will not exceed the total number of shares of Common Stock then authorized under the Company’s articles of incorporation.
We are qualified to practice law in the State of Nevada. The opinion set forth herein is expressly limited to and based exclusively on the general corporate laws of the State of Nevada, and we do not purport to be experts on, or to express any opinion with respect to the applicability thereto or the effect thereon of, the laws of any other jurisdiction. We express no opinion concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, or any state securities or “blue sky” laws, rules or regulations.
Based on the foregoing and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that the Shares have been duly authorized by the Company and if, when and to the extent any Shares are issued in accordance with all applicable terms and conditions set forth in the Plan and in exchange for the consideration required thereunder, and as described in the Registration Statement, such Shares will be validly issued, fully paid and non-assessable.
The opinion expressed herein is based upon the applicable laws of the State of Nevada and the facts in existence on the date of this opinion letter. In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinion set forth herein or to apprise you of any changes in any laws or facts after such time as the Registration Statement is declared effective. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinion set forth herein.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of PlayAGS, Inc. of our report dated March 10, 2022 relating to the financial statements and financial statement schedules, which appears in PlayAGS, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2021.
/s/ PricewaterhouseCoopers LLP
Las Vegas, Nevada
July 19, 2022
EXHIBIT 107
Calculation of Filing Fee Table
FORM S-8
(Form Type)
PlayAGS, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security
Type
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Security Class Title
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Fee Calculation
Rule
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Amount
Registered(1)
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Proposed
Maximum
Offering
Price Per Share
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Maximum
Aggregate
Offering Price
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Fee Rate
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Amount of
Registration
Fee
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Equity
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Common stock, par value $0.01 per share
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Rule 457(c) and Rule 457(h)
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5,000,000(2)
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$4.39(3)
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$21,950,000
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$92.70 per $1,000,000
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$2,034.77
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Total Offering Amounts
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$21,950,000
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$2,034.77 |
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Total Fee Offsets
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—
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Net Fee Due
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$2,034.77 |
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities to be offered or issued from stock splits, stock dividends or similar transactions.
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(2)
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Consists of shares of common stock issuable in respect of awards to be granted under the PlayAGS, Inc. 2018 Omnibus Incentive Plan, as amended.
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(3)
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Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share was determined based on the average of the high and low prices of PlayAGS, Inc.’s common stock reported by the New York Stock Exchange as of July 14, 2022.
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