0001104659-03-003807.txt : 20030307 0001104659-03-003807.hdr.sgml : 20030307 20030307165158 ACCESSION NUMBER: 0001104659-03-003807 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030307 GROUP MEMBERS: LONA M. B. FINLEY GROUP MEMBERS: PETER D. CLEARY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PDS GAMING CORP CENTRAL INDEX KEY: 0000921438 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE LESSORS [6172] IRS NUMBER: 411605970 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-47236 FILM NUMBER: 03596633 BUSINESS ADDRESS: STREET 1: 6171 MCLEOD DR CITY: LAS VEGAS STATE: NV ZIP: 89120-4048 BUSINESS PHONE: 7027360700 MAIL ADDRESS: STREET 1: 6171 MCLEOD DR CITY: LAS VEGAS STATE: NV ZIP: 89120-4048 FORMER COMPANY: FORMER CONFORMED NAME: PFS GAMING CORP DATE OF NAME CHANGE: 20010531 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FINLEY JOHAN P CENTRAL INDEX KEY: 0000938364 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O PDS GAMING CORP STREET 2: 6171 MCLEOD DRIVE STATE: NV ZIP: 89120-4048 BUSINESS PHONE: 7027302144 MAIL ADDRESS: STREET 1: 6442 CITY WEST PKWY STREET 2: STE 300 CITY: EDEN PRAIRIE STATE: MN ZIP: 55344 SC 13D 1 j8269_sc13d.htm SC 13D

SEC 1746
(11-02)

Potential persons who are to respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

	UNITED STATES	OMB APPROVAL
	SECURITIES AND EXCHANGE COMMISSION	OMB Number: 3235-0145
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	SCHEDULE 13D	Estimated average burden hours per response. . 11

Under the Securities Exchange Act of 1934
(Amendment No. )*

PDS GAMING CORPORATION

(Name of Issuer)

Common Stock, $.01 par value

(Title of Class of Securities)

69329T 10 5

(CUSIP Number)

Johan P. Finley

PDS Gaming Corporation

6170 McLeod Dr.
Las Vegas, NV 89120

(702) 736-0700

with copies to:

Brian A. Sullivan, Esq.

Bryan Cave LLP

120 Broadway, Suite 300

Santa Monica, CA 90401

(310) 576-2100

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

February 25, 2003

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ]

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 69329T 10 5

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Johan P. Finley

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			[ X ]
		(b)			[ ]

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) SC, OO

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

	6.	Citizenship or Place of Organization United States of America

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 969,586 shares

			8.	Shared Voting Power 11,200 shares

			9.	Sole Dispositive Power 969,586 shares

			10.	Shared Dispositive Power 11,200 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 980,786 shares (includes 11,200 shares held as co-trustee for minor child also claimed by spouse as co-trustee)

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ý (Excludes 390,177 shares beneficially owned by spouse with sole voting power for which beneficial interest is disclaimed)

	13.	Percent of Class Represented by Amount in Row (11) 25.3%

	14.	Type of Reporting Person (See Instructions) IN

CUSIP No. 69329T 10 5

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Lona M. B. Finley

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			[ X ]
		(b)			[ ]

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) SC, OO

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

	6.	Citizenship or Place of Organization United States of America

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 390,177 shares

			8.	Shared Voting Power 11,200 shares

			9.	Sole Dispositive Power 390,177 shares

			10.	Shared Dispositive Power 11,200 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 401,377 (includes 11,200 shares held as co-trustee for minor child also claimed by spouse as co-trustee)

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ý (Excludes 969,586 shares beneficially owned by spouse with sole voting power for which beneficial interest is disclaimed)

	13.	Percent of Class Represented by Amount in Row (11) 10.2%

	14.	Type of Reporting Person (See Instructions) IN

CUSIP No. 69329T 10 5

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Peter D. Cleary

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			[ X ]
		(b)			[ ]

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) SC, OO

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

	6.	Citizenship or Place of Organization United States of America

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 127,358 shares

			8.	Shared Voting Power 0 shares

			9.	Sole Dispositive Power 127,358 shares

			10.	Shared Dispositive Power 0 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 127,358 shares

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 3.3%

	14.	Type of Reporting Person (See Instructions) IN

Item 1.	Security and Issuer

This Schedule 13D relates to the Common Stock, par value $.01 (“Common Stock”), of PDS Gaming Corporation, a Minnesota corporation (the “Company”). The address of its principal executive offices is 6170 McLeod Dr., Las Vegas, Nevada 89120.

Item 2.	Identity and Background

(a)-(c) This Schedule 13D is being filed jointly by Johan P. Finley, Peter D. Cleary, and Lona M. B. Finley. All of the filers of this Schedule 13D are collectively referred to herein as the “Group.” The Joint Filing Agreement of the members of the Group is attached as Exhibit 1 hereto. The Group, acting as a group, may be deemed to have acquired “beneficial ownership” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Act”), and the rules and regulations promulgated thereunder, of the shares of Common Stock reported in this Schedule 13D, because, in virtue of the making of the Proposal (as defined in Item 4 infra), they may be deemed to have formed a “group” within the meaning of Section 13(d) of the Act for the purpose of acquiring, holding, voting or disposing of equity securities of the Company.

The business address of Johan P. Finley is 6170 McLeod Dr., Las Vegas, Nevada 89120. Mr. Finley is the founder of the Company and is its Chief Executive Officer and Chairman of its Board of Directors.

The business address of Peter D. Cleary is 6170 McLeod Dr., Las Vegas, Nevada 89120. Mr. Cleary is the President and Chief Operating Officer of the Company, and a member of its Board of Directors.

The business address of Lona M. B. Finley is 6170 McLeod Dr., Las Vegas, Nevada 89120. Ms. Finley is the Secretary, Chief Administrative Officer and Executive Vice President of the Company, and a member of its Board of Directors.

	(d) During the past five years, no member of the Group has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

	(e) During the past five years, no member of the Group has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws.

	(f) All of the individuals who are members of the Group are citizens of the United States of America.


Item 3.	Source and Amount of Funds or Other Consideration

In order to effectuate the proposed Going Private Transaction (as defined in Item 4 infra) in accordance with the terms of the Letter of Intent (as defined in Item 4 infra), the members of the Group would pay for each outstanding share of the Common Stock not owned by them (i) cash in the amount of $1.25 on the date of the closing of the Merger (as defined in Item 4 infra) (the “Closing Payment”), and (ii) $0.50 in cash on each of the first, second and third anniversaries of such date (the “Post-Closing Payments”). The amount of the Closing Payment would be approximately $3,500,000, which the Group anticipates would be funded from the proceeds of the future issuance of securities by the Acquisition Vehicle (as defined in Item 4 infra). The aggregate amount of the Post-Closing Payments would be approximately $3,900,000, which the Group anticipates would be funded from cash generated by the operations of the Company’s business after the closing of the Merger (the “Closing”).

Item 4.	Purpose of Transaction

Pursuant to a Letter of Intent, dated as of February 23, 2003, between the members of the Group, on the one hand, and the Company, on the other hand (the “Letter of Intent”), the Group has proposed (the “Proposal”) to acquire each of the outstanding shares of the Company’s capital stock not owned by the members of the Group in exchange for (i) cash in the amount of $1.25 and (ii) a deferred payment right consisting of the right to receive an aggregate of $1.50 in three equal installments payable on the first, second and third anniversaries of the Closing (the “Going Private Transaction”). Pursuant to the terms of the Letter of Intent, the acquisition would be effected by means of the merger of a company specially formed for the purpose by the members of the Group (the “Acquisition Vehicle”), or a wholly-owned subsidiary thereof, with the Company (the “Merger”). Upon consummation of the Merger, the Members of the Group would own, directly or indirectly, all of the outstanding shares of the capital stock of the Company. The Company thereupon would cease to be authorized to be quoted on the NASDAQ SmallCap Market, and would become eligible for termination of registration pursuant to Section 12(g)(4) of the Act. The members of the Group intend, notwithstanding, upon consummation of the Merger, to voluntarily maintain the Company’s registration under Section 12(g) of the Act until July 1, 2004. Other than as described above, the members of the Group have no current plans or proposals in place which would result in any of the consequences enumerated in paragraphs (a) – (j) of Item 4 of Schedule 13D, but reserve the right, at any time and from time to time, to review or reconsider their positions and to formulate other or additional plans or proposals with respect thereto.

Item 5.			Interest in Securities of the Issuer

	The percentages used in this Schedule 13D are calculated based upon the number of outstanding shares of Common Stock, 3,799,978, reported as the number of outstanding shares thereof as of October 28, 2002, on the Company’s Form 10-Q filed on November 12, 2002.

		(1)				Johan P. Finley

				(a)		Aggregate number of shares beneficially owned: 980,786*
						Percentage: 25.3%

				*56,250 of which are represented by currently exercisable options (or options exercisable within 60 days of the date hereof) to acquire such shares

				(b)		1.			Sole power to vote or to direct vote: 969,586
						2.			Shared power to vote or to direct vote: 11,200
						3.			Sole power to dispose or to direct the disposition: 969,586
						4.			Shared power to dispose or to direct disposition: 11,200

				(c)	Mr. Finley made the following purchases of Common Stock in the last 60 days:

							None

				(d)-(e)			Not applicable.

		(2)					Lona M. B. Finley

				(a)			Aggregate number of shares beneficially owned: 401,377*
							Percentage: 10.2%

				*128,591 of which are represented by currently exercisable options (or options exercisable within 60 days of the date hereof) to acquire such shares

				(b)	1.			Sole power to vote or to direct vote: 390,177
					2.			Shared power to vote or to direct vote: 11,200
					3.			Sole power to dispose or to direct the disposition: 390,177
					4.			Shared power to dispose or to direct disposition: 11,200

				(c)	Ms. Finley made the following purchases of Common Stock in the last 60 days:

					None

				(d)-(e)				Not applicable.

		(3)			Peter D. Cleary

				(a)	Aggregate number of shares beneficially owned: 127,358*
					Percentage: 3.3%

				*113,000 of which are represented by currently exercisable options (or options exercisable within 60 days of the date hereof) to acquire such shares

				(b)	1.			Sole power to vote or to direct vote: 127,358
					2.			Shared power to vote or to direct vote: 0
					3.			Sole power to dispose or to direct the disposition: 127,358
					4.			Shared power to dispose or to direct disposition: 0

				(c)	Mr. Cleary made the following purchases of Common Stock in the last 60 days:

					None

				(d)-(e)				Not applicable.


Item 6.		Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Other than the Joint Filing Agreement filed as Exhibit 1 to this filing and the Letter of Intent filed as Exhibit 2 to this filing, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 hereof and between such persons and any person with respect to any securities of the Company, including but not limited to transfer or voting of any of the securities, finders’ fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or losses, or the giving or withholding of proxies.

Item 7.		Material to Be Filed as Exhibits

	No.		Description

	1		Joint Filing Agreement

	2		Letter of Intent

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: March 6, 2003
	/s/ Johan P. Finley
	Johan P. Finley

	/s/ Peter D. Cleary
	Peter D. Cleary

	/s/ Lona M. B. Finley
	Lona M. B. Finley

EX-1 3 j8269_ex1.htm EX-1

Exhibit 1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of them of a statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, par value $.01, of PDS Gaming Corporation; and further agree that this Joint Filing Agreement be included as an exhibit to such joint filing. In evidence thereof, the undersigned hereby execute this Agreement this 6th day of March, 2003.

	/s/ Johan P. Finley
	Johan P. Finley

	/s/ Peter D. Cleary
	Peter D. Cleary

	/s/ Lona M. B. Finley
	Lona M. B. Finley

EX-2 4 j8269_ex2.htm EX-2

Exhibit 2

February 23, 2003

The Board of Directors

PDS Gaming Corporation

6171 McLeod Drive

Las Vegas, Nevada 89120

Gentlemen:

On behalf of a corporation or other entity (“Newco”) to be formed by the undersigned (collectively, the “MBO Group”), we hereby submit a proposal on the following terms (the “Proposal”) to acquire PDS Gaming Corporation, a Minnesota corporation (the “Company”). Consummation of the proposed acquisition would result in the shareholders of the Company, other than the members of the MBO Group, receiving in exchange for each of the outstanding shares (the “Shares”) of Common Stock, $.01 par value, of the Company (the “Common Stock”) owned by them (i) $1.25 in cash, and (ii) a nontransferable deferred payment right representing the right to receive an aggregate of $1.50 in three equal installments of $0.50 payable on, respectively, the first, second and third anniversaries of the consummation of the acquisition (each, a “Payment Right”). The acquisition would be effected by means of a merger of Newco or a wholly-owned subsidiary of Newco with the Company. The MBO Group would own, directly or indirectly, all of the outstanding Common Stock following the acquisition.

If the Proposal is acceptable to you, we will proceed promptly with the Company to negotiate a binding, definitive agreement (the “Agreement”) providing for the acquisition, with the goal of having the Proposal submitted to a vote of the shareholders at the Company’s 2003 annual meeting of shareholders. It is our contemplation that Bryan Cave LLP, counsel to Newco and the MBO Group, would prepare the first drafts of the Agreement and the other acquisition documents, the necessary securities law filings, including the Rule 13e-3 Transaction Statement on Schedule 13E-3 and the preliminary and definitive proxy statements on Schedule 14A, and the documents necessary for the acquisition to comply with the Minnesota Control Share Acquisitions statute, including the information statement contemplated by Subdivision 2 of Section 302A.671 of the Minnesota Business Corporation Act. We believe it would be desirable for the three independent directors of the Company to be constituted as a special committee (the “Special Committee”) of the Company’s Board of Directors (the “Board”) to respond to the Proposal on behalf of the Company’s public shareholders, and each of the undersigned is prepared, in his or her capacity as a member of the Board, to vote in favor of that delegation of authority. We also encourage the Special Committee to retain legal and financial advisors to assist it in its review of the Proposal. Further, we would welcome the opportunity to make a formal presentation of the Proposal to the members of the Special Committee.

The MBO Group, on behalf of Newco, has retained Wedbush Morgan Securities (“WMS”) to act as the investment banker and financial advisor to Newco with respect to the acquisition. Based on our preliminary discussions with senior representatives of WMS, it is our belief that arrangement of all third party financing commitments necessary to consummate the acquisition will be in place not later than May 24, 2003.

Consummation of the acquisition would be subject to the approval of the Agreement by the Board, the Special Committee, a majority of the Company’s outstanding shares and a majority of the Company’s outstanding shares not owned by members of the MBO Group or their affiliates; the procuring of all necessary consents from the Company’s commercial lenders and the trustees under the indentures covering the Company’s outstanding debt securities (the “Indentures”), and the holders thereof; the securing of all required approvals from all gaming regulatory agencies having jurisdiction over the business of the Company; the obtaining of the necessary financing; the receipt by the Company of a favorable fairness opinion from an independent investment banking firm; the satisfaction of all applicable federal and state regulatory requirements; and the absence during the period commencing with the date hereof of any material change in the Company’s actual or prospective business, assets, operations, financial condition or results of operations. The Agreement would also contain representations, warranties, covenants and other conditions customary for transactions of this kind.

We contemplate that each person holding an option to purchase shares of Common Stock issued under the Company’s 1993 Stock Option Plan or 2002 Stock Option Plan (collectively, “Covered Shares”) would receive in exchange therefor, within ten (10) days of the consummation of the acquisition, with respect to each Covered Share, cash in the amount, if any, by which (x) the sum of (i) $1.25 and (ii) the fair market value, as determined by the Special Committee, of a Payment Right, is greater than (y) the exercise price of said option. It is further contemplated that following the acquisition an employee benefit package would be provided that is no less favorable to employees than that currently provided by the Company and, of course, that the Company’s operations would be kept intact and that the Company’s headquarters would remain at its present location. The undersigned understand that, pursuant to the terms of the Indentures, the Company is required to maintain its status as a reporting company under the Securities Exchange Act of 1934 until July 1, 2004.

Pending the execution and delivery of the Agreement (or the earlier termination of this letter of intent), in consideration of the undersigned’s making of the Proposal, the Company will not, and will not permit its representatives to, solicit or encourage (including by way of furnishing any non-public information concerning the Company’s business, properties or assets) from any third party any alternative acquisition proposal, including, without limitation, any proposal to acquire a substantial equity interest in, or a material amount of assets of (other than in the Company’s ordinary course of business), the Company; provided, however, that the Company may furnish information concerning its business, properties or assets in response to a solicitation by another person if counsel to the Company or counsel to the Special Committee formally advises the Board or Special Committee that there would be a significant risk of liability on the part of the members of the Board or of the Special

Committee to the Company’s shareholders as a result of failure to furnish such information to such other person. If any such alternative acquisition proposal, or an inquiry looking towards such proposal, is received by the Company or any such information is so furnished, the Company shall promptly notify the undersigned of such fact.

Either the Company or the undersigned may terminate this letter of intent if appropriate financing commitments have not been obtained by Newco on or before May 24, 2003, or the Agreement is not executed on or before June 30, 2003. If for any reason (other than the circumstances adverted to in the succeeding paragraph) this letter of intent is terminated, the Company shall, in view of the efforts of Newco, reimburse Newco for its reasonable professional and advisory fees and other out-of-pocket expenses (but not in an aggregate amount in excess of $400,000) incurred in connection with the transaction contemplated by this letter and the financing thereof.

The Company may also terminate this letter of intent at any time if it shall have entered into a definitive agreement with any other person or persons which provides for the acquisition of all of the outstanding Shares not owned by members of the MBO Group at an average value per Share in excess of $2.75. In such event, in view of the efforts of Newco and the potential benefits of the acquisition to the shareholders of the Company and the potential loss to Newco of not proceeding with the acquisition, the Company shall pay to Newco a fee of $500,000 and reimburse Newco for its reasonable professional and advisory fees and other out-of-pocket expenses incurred in connection with the transaction contemplated by this letter and the financing thereof. The same amounts shall also be paid by the Company to Newco if any person, or any persons acting as a group, acquire(s) more than 20% of the Shares outstanding at an average value per Share in excess of $2.75 and this letter of intent is consequently terminated by Newco.

At the request of Newco, or any of the undersigned on behalf of Newco, the Company shall pay to or on behalf of Newco the amount of the reasonable professional and advisory fees and other out-of-pocket expenses incurred by Newco in connection with the transaction contemplated by this letter and the financing thereof, to the extent that such expenses would otherwise be reimbursable to Newco pursuant to the terms of this letter upon termination thereof, as and when such expenses are incurred, promptly after submission to the Special Committee of documentation suitably evidencing the nature and amount of such expenses.

The Agreement, when entered into, will contain provisions similar, mutatis mutandis, to those contained in the first, second and fourth preceding paragraphs and will also provide that, if the acquisition is not consummated for any reason other than the circumstances adverted to in the second preceding paragraph, the Company will pay Newco $500,000 and reimburse Newco for its reasonable professional and advisory fees and other out-of-pocket expenses (but not in an aggregate amount in excess of $500,000) incurred in connection with the transaction contemplated by the Agreement and the financing thereof.

It is understood that this letter represents merely our understanding with respect to the acquisition, and that the parties intend to proceed promptly and in good faith, subject to the terms of this letter and the Agreement, to consummate the acquisition, but that a binding agreement with respect to the

acquisition will result only from execution of the Agreement. Notwithstanding the foregoing, the provisions of the second, third, fourth and fifth preceding paragraphs shall be fully binding on the parties hereto for all purposes.

For the record, each of us would like to state that we remain fully committed to the Company’s current business plan and its execution, and will, without regard to the response of the Board or the shareholders of the Company to the Proposal, continue throughout this process to discharge faithfully our duties as officers and directors of the Company.

We, of course, reserve the right to withdraw the Proposal at any time prior to its acceptance by the Company in the manner indicated below. If the foregoing is acceptable to you, please so confirm by signing and returning to us an enclosed duplicate original of this letter.

Very truly yours,

/s/ Johan P. Finley

Johan P. Finley

/s/ Lona M. B. Finley

Lona M. B. Finley

/s/ Peter D. Cleary

Peter D. Cleary

ACCEPTED AND AGREED

AS OF THE DATE FIRST

WRITTEN ABOVE:

PDS GAMING CORPORATION

By:	/s/ James L. Morrell
Its:	Chairman, Special Committee
	of the Board of Directors

Under the Securities Exchange Act of 1934 (Amendment No. )*

Signature

Under the Securities Exchange Act of 1934
(Amendment No. )*