Filed
with the Securities and Exchange Commission on May 14, 2009
Registration
No. 333-______
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UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
S-8
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REGISTRATION
STATEMENT
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UNDER
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THE
SECURITIES ACT OF 1933
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(Exact
name of registrant as specified in its
charter)
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Texas
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74-2611034
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(State or other
jurisdiction
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(I.R.S. employer identification
no.)
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of incorporation or
organization)
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206 Wild Basin Rd. South,
Bldg. B, Suite 400 Austin, Texas 78746
(Address
of principal executive offices) (Zip code)
Multimedia Games, Inc. 2008
Employment Inducement Award Plan
(Full
title of the plan)
Uri
Clinton
Senior
Vice President, General Counsel and Corporate Secretary
Multimedia
Games, Inc.
206 Wild
Basin Rd. South, Bldg. B, Suite 400
Austin, Texas
78746
(Name and
address of agent for service)
Telephone
number, including area code, of agent for service: (512)
334-7500.
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer £
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Accelerated
filer R
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Non-accelerated
filer £
(Do
not check if a smaller reporting company)
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Smaller
reporting company £
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be registered1
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Amount
to be
registered2
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Proposed
maximum
offering
price
per share3
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Proposed
maximum
aggregate
offering
price3
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Amount
of
registration
fee
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2008 Employment Inducement Award
Plan
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Common
Stock
Par
Value $0.01 per share
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2,500,000
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$2.85
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$7,125,000
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$398.29
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TOTAL
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2,500,000
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$7,125,000
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$398.29
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1 The securities to be
registered include options and rights to acquire the common stock of Multimedia
Games, Inc. (the “Common Stock”).
2 In
addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the “Securities Act”), this Registration Statement also covers such
indeterminate number of additional shares of Common Stock as is necessary to
eliminate any dilutive effect of any future stock split, stock dividend or
similar transaction.
3 Estimated
pursuant to Rule 457(h) and 457(c) of the Securities Act solely for purposes of
calculating the registration fee. The price for the shares under each
plan is based upon the average of the high and low prices of the Common Stock on
May 12, 2009, as reported on the Nasdaq Global Select Market.
PART
II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference
The following documents and information
previously filed with the Securities and Exchange Commission (the “Commission”)
by the Registrant are hereby incorporated by reference in this Registration
Statement:
(a) The
Registrant’s Annual Report on Form 10-K for the fiscal year ended September
30, 2008, as filed with Commission on December 15, 2008 pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and as amended by Amendment No. 1 as filed with the
Commission on January 28, 2009 and Amendment No. 2 as filed with the
Commission on March 6, 2009.
(b) All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the registrant document referred to
in (a) above.
(c) The
description of the Registrant’s Common Stock contained in the Registrant’s
Registration Statement on Form S-3, as filed with the Commission on November 25,
1996, and as amended on Form S-3/A as filed with the Commission on January 6,
1997.
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 to this registration
statement which indicates that all securities offered hereby have been sold or
which deregisters all securities 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.
Item
4. Description
of Securities
The class of securities to be offered
is registered under Section 12 of the Exchange Act.
Item
5. Interests
of Named Experts and Counsel
Inapplicable.
Item
6. Indemnification
of Directors and Officers
Article
2.02-1.B of the Texas Business Corporation Act, as amended (the “TBCA”),
grants to a corporation the power to indemnify a person who was, is or is
threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director of the corporation against judgments, penalties
(including excise and similar taxes), fines, settlements and reasonable expenses
actually incurred in connection therewith, only if it is determined that the
person (1) conducted himself in good faith; (2) reasonably believed that (a) in
the case of conduct in his official capacity as a director of the corporation,
his conduct was in the corporation's best interests, and (b) in all other cases,
his conduct was at least not opposed to the corporation's best interests; and
(3) in the case of any criminal proceeding, he had no reasonable cause to
believe that his conduct was unlawful. Article 2.02-1.C limits the allowable
indemnification by providing that, except to the extent permitted by Article
2.02-1.E, a director may not be indemnified in respect of a proceeding in which
the person is found liable (1) on the basis that he improperly received a
personal benefit, whether or not the benefit resulted from an action taken in
his official capacity, or (2) to the corporation. Article 2.02-1.E provides that
if a director is found liable to the corporation or is found liable on the basis
that he received a personal benefit, the permissible indemnification (1) is
limited to reasonable expenses actually incurred by the person in connection
with the proceeding, and (2) shall not be made in respect of any proceeding in
which the person shall have been found liable for willful or intentional
misconduct in the performance of his duty to the corporation. Finally, Article
2.02-1.H provides that a corporation shall indemnify a director against
reasonable expenses incurred by him in connection with a proceeding in which he
is a named defendant or respondent because he is or was a director if he has
been wholly successful, on the merits or otherwise, in defense of the
proceeding.
With
respect to the officers of a corporation, Article 2.02-1.O of the TBCA provides
that a corporation may indemnify and advance expenses to an officer of the
corporation to the same extent that it may indemnify and advance expenses to
directors under Article 2.02-1. Further, Article 2.02-1.O provides that an
officer of a corporation shall be indemnified as, and to the same extent,
provided by Article 2.02-1.H for a director.
Texas law
also permits a corporation to purchase and maintain insurance or another
arrangement on behalf of any person who is or was an officer against any
liability asserted against him and incurred by him in such a capacity or arising
out of his status as such a person, whether or not the corporation would have
the power to indemnify him against that liability under Article
2.02-1.
Article
Ten of the Registrant’s Amended and Restated Articles of Incorporation, as
amended (the “Articles”), provides that a director of the Registrant shall not
be liable to the Registrant or its shareholders for monetary damages for an act
or omission in the director's capacity as a director, except to the extent that
any applicable law may prevent such director from being relieved of such
personal liability.
The
Registrant’s Second Amended and Restated Bylaws, as amended (the “Bylaws”),
provides for the indemnification of its officers, and the advancement to them of
expenses in connection with proceedings and claims, to the fullest extent
permitted under the TBCA.
The
Registrant has entered into indemnification agreements with certain of its
officers that contractually provide for indemnification and expense
advancement. Both the Bylaws and the agreements include related
provisions meant to facilitate the indemnitees’ receipt of such
benefits. These provisions cover, among other things:
(i) specification of the method of determining entitlement to
indemnification and the selection of a reviewing party that will in some cases
make such determination, (ii) specification of certain time periods by which
certain payments or determinations must be made and actions must be taken and
(iii) the establishment of certain presumptions in favor of an
indemnitee. The benefits of certain of these provisions are available
to an indemnitee only if there has been a change in control (as defined
therein). In addition, the Registrant may purchase officers liability insurance
policies for its officers.
The above
discussion of Article 2.02-1 of the TBCA and of the Registrant’s Articles
and Bylaws is not intended to be exhaustive and is respectively qualified in its
entirety by such statute, the Articles and the Bylaws.
Item
7.
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Exemption
From Registration Claimed
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Inapplicable.
See Exhibit Index.
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 the
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 the registration statement;
(iii) 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;
provided, however,
that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is
on Form S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the 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.
(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.
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 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.
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 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.
SIGNATURE
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Austin, State of Texas, on May 13, 2009.
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MULTIMEDIA
GAMES, INC.
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By:
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/s/
Uri Clinton
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Uri
Clinton
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Senior
Vice President, General Counsel and
Corporate
Secretary
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POWER OF
ATTORNEY
The officers of Multimedia Games, Inc.,
whose signatures appear below, hereby constitute and appoint Anthony M.
Sanfilippo and Uri Clinton, and each of them, their true and lawful attorneys
and agents, with full power of substitution, each with power to act alone, to
sign and execute on behalf of the undersigned any amendment or amendments to
this registration statement on Form S-8, and each of the undersigned does
hereby ratify and confirm all that each of said attorney and agent, or their or
his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this registration statement has been signed
by the following persons in the capacities indicated on May 13,
2009.
Signature
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Title
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/s/
Anthony M. Sanfilippo
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President,
Chief Executive Officer and Director
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Anthony
M. Sanfilippo
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(Principal
Executive Officer)
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/s/
Adam D. Chibib
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Chief
Financial Officer
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Adam
D. Chibib
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(Principal
Financial Officer)
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/s/
Uri Clinton
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General
Counsel and Corporate Secretary
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Uri
Clinton
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(Principal
Accounting Officer)
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/s/
Neil E. Jenkins
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Director
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Neil
E. Jenkins
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/s/
Emanuel R. Pearlman
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Director
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Emanuel
R. Pearlman
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/s/
Robert D. Repass
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Director
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Robert
D. Repass
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/s/
Justin A. Orlando
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Director
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Justin
A. Orlando
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EXHIBIT
INDEX
3.1
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Amended
and Restated Articles of Incorporation of the Registrant is incorporated
by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form
10-QSB filed with the Securities and Exchange Commission effective May 15,
1997, and as amended on the Registrant’s Form 10-Q filed with the SEC for
the quarter ended December 31,
2003.
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3.2
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Second
Amended and Restated Bylaws of the Registrant, as amended, are
incorporated by reference to Exhibit 3.3 to the Registrant’s
Form 10-K filed with the SEC effective December 15,
2008.
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5.1
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Legal
Opinion of DLA Piper LLP (US)
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23.1
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Consent
of Counsel (included in
Exhibit 5)
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23.2
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Consent
of Independent Registered Public Accounting
Firm
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24.1
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Power
of Attorney (included in signature pages to this registration
statement)
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99.1
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2008
Employment Inducement Award Plan is incorporated by reference to Exhibit
10.13 to the Registrant’s Form 10-K filed with the SEC effective December
15, 2008.
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