-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WSukSxjfyDnIHxZb7RpNZIWTGgoUAkCdcRsSz8n+8unZi2HtwBUbBTcQ8jmnK+RD P6Y5dfX0WpUQSJcGfOysoQ== 0000899140-07-001482.txt : 20070828 0000899140-07-001482.hdr.sgml : 20070828 20070828165606 ACCESSION NUMBER: 0000899140-07-001482 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070828 DATE AS OF CHANGE: 20070828 GROUP MEMBERS: D. E. SHAW & CO., L.L.C. GROUP MEMBERS: D. E. SHAW & CO., L.P. GROUP MEMBERS: DAVID E. SHAW SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ARCHON CORP CENTRAL INDEX KEY: 0000812482 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 880304348 STATE OF INCORPORATION: NV FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-38646 FILM NUMBER: 071084492 BUSINESS ADDRESS: STREET 1: 3993 HOWARD HUGHES PARKWAY STREET 2: SUITE 630 CITY: LAS VEGAS STATE: NV ZIP: 89109 BUSINESS PHONE: 7027329120 MAIL ADDRESS: STREET 1: P.O. BOX 270820 CITY: LAS VEGAS STATE: NV ZIP: 89127 FORMER COMPANY: FORMER CONFORMED NAME: SANTA FE GAMING CORP DATE OF NAME CHANGE: 19960515 FORMER COMPANY: FORMER CONFORMED NAME: SAHARA GAMING CORP DATE OF NAME CHANGE: 19930824 FORMER COMPANY: FORMER CONFORMED NAME: SAHARA CASINO PARTNERS L P DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. CENTRAL INDEX KEY: 0001263972 IRS NUMBER: 010577802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2124780000 MAIL ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: D.E. SHAW LAMINAR PORTFOLIOS, L.L.C. DATE OF NAME CHANGE: 20060928 FORMER COMPANY: FORMER CONFORMED NAME: DE SHAW LAMINAR PORTFOLIOS LLC DATE OF NAME CHANGE: 20030916 SC 13D 1 a3891467a.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934* ARCHON CORPORATION --------------------------------------------------------------------- (Name of Issuer) Exchangeable Redeemable Preferred Stock --------------------------------------------------------------------- (Title of Class of Securities) 03957P 20 0 --------------------------------------------------------------------- (CUSIP Number) D. E. Shaw Laminar Portfolios, L.L.C. Attn: Compliance Department 120 West Forty-Fifth Street Floor 39, Tower 45 New York, NY 10036 212-478-0000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Steven J. Gartner, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019-6099 (212) 728-8000 August 21, 2007 --------------------------------------------------------------------- (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 ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [X] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 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). Page 1 of 14 SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 03957P 20 0 - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw Laminar Portfolios, L.L.C. FEIN 01-0577802 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 707,550 OWNED BY EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 707,550 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 707,550 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) OO - ----------- -------------------------------------------------------------------- Page 2 of 14 SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 03957P 20 0 - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw & Co., L.L.C. FEIN 13-3799946 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 707,550 OWNED BY EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 707,550 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 707,550 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) OO - ----------- -------------------------------------------------------------------- Page 3 of 14 SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 03957P 20 0 - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw & Co., L.P. FEIN 13-3695715 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 707,550 OWNED BY EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 707,550 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 707,550 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IA, PN - ----------- -------------------------------------------------------------------- Page 4 of 14 SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 03957P 20 0 - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION David E. Shaw - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 707,550 OWNED BY EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 707,550 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 707,550 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - ----------- -------------------------------------------------------------------- Page 5 of 14 Item 1. Security and Issuer. This statement on Schedule 13D relates to the Exchangeable Redeemable Preferred Stock ("Preferred Stock") and the common stock ("Common Stock"), of Archon Corporation, a Nevada corporation (the "Issuer"), and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The principal executive offices of the Issuer are located at 4336 Losee Road, Suite 5, North Las Vegas, NV 89030. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that any Reporting Person or any of its affiliates is the beneficial owner of any equity securities for purposes of Section 13(d) of the Exchange Act or for any other purpose or that any Reporting Person has an obligation to file this Schedule 13D. Item 2. Identity and Background. (a), (f) This statement is filed on behalf of D. E. Shaw Laminar Portfolios, L.L.C., a Delaware limited liability company ("Laminar"), D. E. Shaw & Co., L.L.C., a Delaware limited liability company ("DESCO LLC"), D. E. Shaw & Co., L.P., a Delaware limited partnership ("DESCO LP"), and David E. Shaw, a citizen of the United States of America (David E. Shaw, together with Laminar, DESCO LLC, and DESCO LP, collectively, the "Reporting Persons"). The Reporting Persons are filing jointly and the agreement among the Reporting Persons to file jointly is attached hereto as Exhibit 1 and incorporated herein by reference. (b) The business address and principal office, as applicable, of all Reporting Persons is 120 West Forty-Fifth Street, Floor 39, Tower 45, New York, NY 10036. Page 6 of 14 (c) The principal business of Laminar is that of a limited liability company focusing primarily on credit-opportunity related investment strategies. Laminar has no executive officers or directors. The principal business of DESCO LLC is to act as managing member to certain funds, including without limitation Laminar. The principal business of DESCO LP is to act as an investment adviser to certain funds, including without limitation Laminar. D. E. Shaw & Co., Inc. ("DESCO Inc."), a Delaware corporation, is the general partner of DESCO LP. D. E. Shaw & Co. II, Inc. ("DESCO II, Inc."), a Delaware corporation, is the managing member of DESCO LLC. David E. Shaw is the president and sole shareholder of DESCO Inc. and DESCO II, Inc. (d), (e) During the last five years, neither any Reporting Person nor, to the best knowledge of any Reporting Person, any person named in Item 2, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) 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 violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. In acquiring 707,550 shares of Preferred Stock since November 23, 2004, Laminar invested approximately $2,811,978 (excluding commissions) of its working capital. In acquiring 300,000 shares of Common Stock since November 23, 2004, Laminar invested approximately $5,602,605 (excluding commissions) of its working capital. Page 7 of 14 Item 4. Purpose of Transaction. Laminar has had and may continue to have discussions with the Issuer and other investors concerning the Issuer. Subject in each case to applicable law, Laminar intends to continue to review its investment in the Preferred Stock and Common Stock from time to time. Depending upon certain factors, including without limitation the financial performance of the Issuer, the availability and price of the Preferred Stock and Common Stock, or other securities related to the Issuer, and other general market and investment conditions, Laminar may at any time and from time to time (as permitted by applicable law) acquire through open market purchases or otherwise additional shares of the Issuer's Preferred Stock and Common Stock, sell through the open market or otherwise, or otherwise engage or participate in a transaction or series of transactions with the purpose or effect of influencing control of the Issuer. There can be no assurance, however, that Laminar or any other Reporting Persons will take any such action. On August 21, 2007, Laminar agreed with LC Capital Master Fund, Ltd., LC Capital/Capital Z SPV, LP, Magten Asset Management Corp., Mercury Real Estate Securities Fund, LP, Mercury Real Estate Securities Offshore Fund Limited, Black Horse Capital LP, Black Horse Capital (QP) LP, Black Horse Capital Offshore Ltd., and Plainfield Special Situations Master Fund Limited (together, with Laminar, the "Plaintiffs") (each of which, as of the date hereof, is a holder of shares of Preferred Stock) to retain legal counsel in order to challenge the Issuer's proposed redemption of all of the outstanding shares of the Preferred Stock as of the close of business on August 31, 2007 at a redemption price of $5.241 per share, such proposed redemption more fully described in the Issuer's Notice of Redemption and related Letter of Transmittal, dated Page 8 of 14 July 31, 2007 (the "Redemption Notice"), filed as an exhibit to the Issuer's Current Report on 8-K filed with the Securities and Exchange Commission (the "SEC") on July 31, 2007 (the "Issuer 8-K"). Following August 21, 2007, the Plaintiffs engaged legal counsel. On August 27, 2007, the Plaintiffs filed an action in the United States District Court for the District of Nevada (the "Court") against the Issuer (the "Complaint") (a) seeking a finding by the Court that the Issuer has breached its obligations under the Issuer's Certificate of Designation of the Preferred Stock, dated September 30, 1993 (the "Certificate"), attached as an exhibit to the Issuer 8-K and awarding the Plaintiffs full compensation of any and all available damages suffered by the Plaintiffs as a result of the Issuer's breach of the Certificate; (b) seeking a finding by the Court that the Issuer's issuance of the Redemption Notice with the improper redemption price is anticipatory breach of a material term of the Certificate and awarding the Plaintiffs full compensation of any and all available damages suffered as a result of the Issuer's anticipatory breach of the Certificate; (c) seeking a finding by the Court that if the Issuer elects to redeem the Preferred Stock, the dividends be properly calculated and compounded per the terms of the Certificate in an amount no less than $7,235,351 up through and including the date of final judgment; (d) seeking an order from the Court calling for the Issuer to reimburse the Plaintiffs' attorneys' fees, expenses and costs incurred in enforcing the Plaintiffs rights; and (e) seeking such other and further relief as the Court may deem appropriate. The foregoing summary of the Complaint does not purport to be complete and is qualified in its entirety by reference to the Complaint attached hereto as Exhibit 2 and incorporated by reference in its entirety into this Item 4. Page 9 of 14 Item 5. Interest in Securities of the Issuer. (a) As of the date hereof, Laminar owns 707,550 shares of Preferred Stock, representing 16.0% of the Preferred Stock outstanding and deemed to be outstanding based upon the Issuer's Definitive Proxy Statement filed with the SEC on June 1, 2007. As a result of the matters described in Item 4 above, Laminar may be deemed to constitute a "group", within the meaning of Section 13(d)(3) of the Exchange Act, with LC Capital Master Fund, Ltd., LC Capital/Capital Z SPV, LP, Magten Asset Management Corp., Mercury Real Estate Securities Fund, LP, Mercury Real Estate Securities Offshore Fund Limited, Black Horse Capital LP, Black Horse Capital (QP) LP, Black Horse Capital Offshore Ltd., and Plainfield Special Situations Master Fund Limited and certain of their affiliates (the "Non-Laminar Plaintiffs"). As a result, the Reporting Persons may be deemed to beneficially own any shares of Preferred Stock that are beneficially owned by the Non-Laminar Plaintiffs as described in reports filed, or that may be filed, by such Non-Laminar Plaintiffs with the SEC. As of the date hereof, Laminar owns 300,000 shares of Common Stock, representing 4.8% of the Common Stock outstanding and deemed to be outstanding based upon the Issuer's Quarterly Report on Form 10-Q filed with the SEC on August 20, 2007. Each of the Reporting Persons hereby disclaims beneficial ownership of any shares of Preferred Stock that may be beneficially owned by the Non-Laminar Plaintiffs and their respective affiliates. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that any Reporting Person or any of its affiliates has an obligation to file this Schedule 13D or is a member of a "group" within the meaning of Section 13(d)(3) of the Exchange Act. Page 10 of 14 (b) Laminar will have the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) 300,000 shares of Common Stock owned by the Reporting Persons as of the date hereof and, to the extent permitted by the terms of the Preferred Stock, Laminar will have the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) 707,550 shares of Preferred Stock owned by the Reporting Persons as of the date hereof. DESCO LLC as Laminar's managing member and DESCO LP as Laminar's investment adviser also may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Preferred Stock and Common Stock. As managing member of DESCO LLC, DESCO II, Inc. may be deemed to have the shared power to vote or to direct the vote (and the shared power to dispose or direct the disposition of) of the Preferred Stock and Common Stock. As general partner of DESCO LP, DESCO Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared the power to dispose or direct the disposition of) the Preferred Stock and Common Stock. None of DESCO LLC, DESCO LP, DESCO Inc., or DESCO II, Inc. owns any shares of the Issuer directly and each such entity disclaims beneficial ownership of the Preferred Stock and Common Stock. David E. Shaw does not own any shares of the Issuer directly. By virtue of David E. Shaw's position as president and sole shareholder of DESCO II, Inc., which is the managing member of DESCO LLC, and by virtue of David E. Shaw's position as president and sole shareholder of DESCO Inc., which is the general partner of DESCO LP, David E. Shaw may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of, the Preferred Stock and Page 11 of 14 Common Stock, and therefore, David E. Shaw may be deemed to be the beneficial owner of such shares. David E. Shaw disclaims beneficial ownership of the Preferred Stock and Common Stock. As of the date hereof, neither any Reporting Person, nor to the best knowledge of any Reporting Person, any of the persons set forth in Item 2, owns any shares of Preferred Stock and Common Stock other than the shares owned by Laminar. (c) Not applicable. (d) No person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Preferred Stock and Common Stock owned by Laminar. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to the Securities of the Issuer. Except for the matters described herein, including Item 4, neither the Reporting Persons nor, to the best knowledge of any Reporting Person, any of the persons listed in Item 2 has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer. Page 12 of 14 Item 7. Material to be Filed as Exhibits 1. Joint Filing Agreement, by and among the Reporting Persons, dated August 28, 2007 2. Complaint filed with the United States District Court, District of Nevada Page 13 of 14 SIGNATURE --------- After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete, and correct. Dated: August 28, 2007 D. E. Shaw Laminar Portfolios, L.L.C. By: D. E. Shaw & Co., L.L.C., as managing member By: /s/ Julius Gaudio ---------------------------------- Managing Director D. E. Shaw & Co., L.L.C. By: /s/ Julius Gaudio ------------------------------------- Managing Director D. E. Shaw & Co., L.P. By: /s/ Julius Gaudio ------------------------------------- Managing Director David E. Shaw By: /s/ Julius Gaudio* ------------------------------------- Attorney-in-Fact for David E. Shaw* * Power of Attorney given by David E. Shaw was previously filed with the SEC on June 26, 2007 as an exhibit to a Schedule 13D/A filed by the Reporting Persons with respect to the Issuer. Page 14 of 14 EX-1 2 a3891467b.txt JOINT FILING AGREEMENT Exhibit 1 --------- JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, each of the undersigned Reporting Persons hereby agrees to the joint filing, along with all other such Reporting Persons, on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Preferred Stock and Common Stock of Archon Corporation, and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, each of the undersigned hereby executes this Agreement as of this 28 day of August, 2007. D. E. Shaw Laminar Portfolios, L.L.C. By: D. E. Shaw & Co., L.L.C., as managing member By: /s/ Julius Gaudio ---------------------------------- Managing Director D. E. Shaw & Co., L.L.C. By: /s/ Julius Gaudio ------------------------------------- Managing Director D. E. Shaw & Co., L.P. By: /s/ Julius Gaudio ------------------------------------- Managing Director David E. Shaw* By: /s/ Julius Gaudio ------------------------------------- Attorney-in-Fact for David E. Shaw* * Power of Attorney given by David E. Shaw was previously filed with the SEC on June 26, 2007 as an exhibit to a Schedule 13D/A filed by the Reporting Persons with respect to the Issuer. EX-2 3 a3898736.txt COMPLAINT Exhibit 2 --------- Complaint Jonathan D. Schiller, DC Bar No. 185496 Jonathan Sherman, DC Bar No. 468539 Jack A. Simms, DC Bar. No. 501921 BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, NW Washington, D.C. 20015 Telephone: (202) 237-2727 Fax: (202) 237-6131 Richard J. Pocker, NV Bar No. 3568 BOIES, SCHILLER & FLEXNER LLP 300 South Fourth Street Suite 800 Las Vegas, NV 89101 Telephone: (702) 382-7300 Fax: (702) 382-2755 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA - -------------------------------------------- D. E. SHAW LAMINAR PORTFOLIOS, L.L.C.; LC CAPITAL MASTER FUND, LTD; LC CAPITAL / CAPITAL Z SPV, LP; MAGTEN ASSET Case No. ______________ MANAGEMENT CORP; MERCURY REAL ESTATE SECURITIES FUND LP; MERCURY REAL ESTATE SECURITIES OFFSHORE FUND LIMITED; BLACK HORSE CAPITAL LP; BLACK HORSE CAPITAL (QP) LP; BLACK HORSE COMPLAINT CAPITAL OFFSHORE LTD; and PLAINFIELD --------- SPECIAL SITUATIONS MASTER FUND LIMITED; Plaintiffs, -vs.- ARCHON CORPORATION, Defendant. - -------------------------------------------- Plaintiffs D. E. Shaw Laminar Portfolios, L.L.C., LC Capital Master Fund, Ltd., LC Capital / Capital Z SPV, LP, Magten Asset Management Corp, Mercury Real Estate Securities Fund LP, Mercury Real Estate Securities Offshore Fund Limited, Black Horse Capital LP, Black Horse Capital (QP) LP, Black Horse Capital Offshore Ltd. and Plainfield Special Situations Master Fund Limited (together, the "Plaintiffs"), by and through their attorneys, Boies, Schiller and Flexner LLP, allege the following as and for their complaint against defendant Archon Corporation ("Archon" or "Defendant"): JURISDICTION AND VENUE ---------------------- 1. This Court has jurisdiction of this matter under 28 U.S.C. ss. 1332(a), as complete diversity of citizenship exists among the parties and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. 2. This Court has personal jurisdiction over the Defendant named herein because the Defendant is a corporation organized under the laws of the State of Nevada with its principal place of business in Nevada. 3. Venue is proper in the District of Nevada pursuant to 28 U.S.C. ss. 1391 because the Defendant was formed under the laws of Nevada and has its principal place of business in Nevada, and because a substantial portion of the transactions and wrongs complained of herein occurred in Nevada. STATEMENT OF THE CASE --------------------- 4. Defendant Archon has unilaterally altered express terms of an agreement by failing to properly calculate compounding dividends with respect to shares of Archon preferred stock. Despite the agreement, Archon has calculated non-compounding -- i.e., "simple" dividends -- a calculation that runs contrary to the language of the agreement and substantially 2 undervalues shares of Archon's preferred stock. Plaintiffs are shareholders of Archon's preferred stock. Archon's improper calculation of non-compounding dividends undervalues Plaintiffs' aggregate preferred shares by more than $7 million. 5. Archon is controlled by CEO and Chairman Paul Lowden. Lowden holds nearly 75% of Archon common shares. As a result of Archon's breaches of the agreement with respect to the preferred shares, Lowden is positioned to achieve - -- personally -- a net benefit of more than $8.5 million dollars. 6. The law, however, does not permit Archon to avoid its contractual obligations through its improper calculations; controlling shareholder Lowden should not be -- and is not -- permitted the attendant personal windfall. Plaintiffs therefore bring this action against Archon for breach of the agreement governing the preferred shares, anticipatory breach of that same agreement and to obtain a judgment declaring that Archon is obligated under its agreement with plaintiffs to provide for calculation of compounding accrued and unpaid dividends with respect to the preferred shares. PARTIES ------- 7. Plaintiff D. E. Shaw Laminar Portfolios, L.L.C. ("Laminar"), is a limited liability company focusing primarily on credit opportunities related to investment strategies and is organized under the laws of the State of Delaware with its principal place of business in New York. As of the date of this Complaint, Laminar holds 707,550 shares of Exchangeable Preferred Stock, as that term is defined below. 8. Plaintiff LC Capital Master Fund, Ltd. ("LC Master Fund") is a Cayman Island exempted company with its principal place of business in the Cayman Islands. 3 9. Plaintiff LC Capital / Capital Z SPV, LP is a Delaware Limited Partnership with its principal place of business in New York. As of the date of this Complaint, LC Master Fund and LC Capital / Capital Z SPV, LP hold, in the aggregate, 171,776 shares of Exchangeable Preferred Stock, as that term is defined below. 10. Plaintiff Magten Asset Management Corp. ("Magten"), a corporation, is an asset management company organized under the laws of the State of Delaware with its principal place of business in New York. As of the date of this Complaint, Magten holds 390,720 shares of Exchangeable Preferred Stock, as that term is defined below. 11. Plaintiff Mercury Real Estate Securities Fund LP ("Mercury Fund") is a Delaware limited partnership, the general partner of which is Mercury Mayfair LLC, a Delaware limited liability company with its principal place of business in Fairfield County, Connecticut. The members of Mercury Mayfair LLC reside in Fairfield County, Connecticut. 12. Plaintiff Mercury Real Estate Securities Offshore Fund Limited ("Mercury Offshore") is a British Virgin Islands company with its registered office at Tortola, British Virgin Islands. The investment advisor for Mercury Offshore is Mercury Real Estate Advisors LLC, a Delaware limited liability company the sole members of which are residents of Fairfield County, Connecticut. As of the date of the Complaint, Mercury Offshore and Mercury Fund (together, "Mercury") hold, in the aggregate, 419,468 shares of the Exchangeable Preferred Stock, as that term is defined below. 13. Plaintiffs Black Horse Capital LP and Black Horse Capital (QP) LP are limited partnerships organized in Delaware with their principal places of business in Charlotte, North Carolina. 4 14. Plaintiff Black Horse Capital Offshore Ltd. is a corporation organized in the Cayman Islands with its principal place of business in the Cayman Islands. As of the date of the Complaint, Black Horse Capital LP, Black Horse Capital (QP) LP, and Black Horse Capital Offshore Ltd. (together "Black Horse") hold, in the aggregate, 153,751 shares of Exchangeable Preferred Stock, as that term is defined below. 15. Plaintiff Plainfield Special Situations Master Fund Limited ("Plainfield"), a Cayman Islands exempt company with its principal place of business in the Cayman Islands, is a private fund managed by Plainfield Asset Management LLC. As of the date of this Complaint, Plainfield holds 254,546 shares of Exchangeable Preferred Stock, as that term is defined below. 16. Defendant Archon Corporation is a corporation organized under the laws of the State of Nevada with its principal place of business in Nevada. RELEVANT FACTS -------------- Ownership of Exchangeable Preferred Stock 17. On or about September 30, 1993, Archon (then known as "Sahara Gaming Corporation") filed its Certificate of Designation (the "Certificate") of the Exchangeable Redeemable Preferred Stock of Archon with the Secretary of State of the State of Nevada. A true and correct copy of the Certificate is attached hereto as Exhibit A. 18. The Certificate authorized Archon to issue the Exchangeable Redeemable Preferred Stock (the "Exchangeable Preferred Stock"). See Ex. A. 19. According to Archon's definitive proxy statement (the "Proxy Statement") filed on June 1, 2007, with the Securities and Exchange Commission, as of May 11, 2007, there were 4,413,777 shares of Exchangeable Preferred Stock issued and outstanding. Further, 5 according to the Proxy Statement, as of May 1, 2007, Paul Lowden, Chairman and CEO of Archon owned 18.4% of the Exchangeable Preferred Stock and 74.7% of Archon's common stock. 20. Plaintiffs collectively hold 2,097,811 shares of the Exchangeable Preferred Stock, which, based on the number of shares of Exchangeable Preferred Stock issued and outstanding as of May 11, 2007 set forth in the Proxy Statement, amounts to approximately: (i) 47% of all such shares issued and outstanding; and (ii) 57% of all such shares not owned by Paul Lowden. The Certificate of Designation Governs the Exchangeable Preferred Stock 21. Paragraph 2 of the Certificate provides for payment to holders of Exchangeable Preferred Stock of cumulative and compounding cash dividends calculated as follows (the "Dividend Calculation Provision"): "a rate per annum per share (the "Dividend Rate") initially set at 8% of (i) $2.14 plus (ii) accrued but unpaid dividends as to which a Dividend Payment Date has occurred." Ex. A at P. 2(a). (emphasis added). Dividends accrue from the date of issuance and are payable semi-annually (each semi-annual dividend period is defined in the Certificate as a "Dividend Period") in arrears on March 31 and September 30 of each year (or if any such day is not a business day, the first business day immediately following), commencing on March 31, 1994 (each such date, a "Dividend Payment Date"). See Ex. A at P. 2(a). The Certificate further provides that accrued but unpaid dividends on the Exchangeable Preferred Stock are "fully cumulative" -- i.e., the Exchangeable Preferred Stock "shall be fully cumulative and shall accrue (whether or not declared), on a daily basis . . ." See Ex. A at P. 2(a). 22. Paragraph 2 of the Certificate, including without limitation clause (ii) of the Dividend Calculation Provision, makes self-evident that accrued and unpaid dividends, which 6 cumulate, compound at the then applicable Dividend Rate. The amount of accrued and unpaid dividends payable for any Dividend Period, therefore, includes "simple" dividends at the then applicable Dividend Rate on $2.14 plus compounded dividends at the then applicable Dividend Rate on all accrued and unpaid dividends; any such amount not paid in cash on the applicable Dividend Payment Date represents the cumulative accrued and unpaid amount as of such Dividend Payment Date. 23. In accordance with the Certificate, rather than pay the preferred dividends in cash or have them accrue, Archon was permitted on any or all of the first six Dividend Payment Dates to pay dividends on the Exchangeable Preferred Stock in the form of additional shares of Exchangeable Preferred Stock at the rate per annum of 0.08 additional shares of Exchangeable Preferred Stock for each share of Exchangeable Preferred Stock. On the first six Dividend Payment Dates, Archon elected to make such "payment in kind" dividend payments in lieu of cash dividends or accruing dividends. 24. Archon has never paid a cash dividend with respect to the Exchangeable Preferred Stock. Subsequent to the sixth Dividend Payment Date and through the date of this Complaint, Archon has chosen to accrue cumulative dividends at the then applicable Dividend Rate rather than pay the dividends in cash. Ex. A at P. 2(a). 25. The Dividend Rate was initially set as 8% per annum and increased, per the Certificate, to the maximum of 16% per annum for the March 2004 Dividend Payment Date. The Redemption Price 26. Pursuant to the Certificate, the shares of the Exchangeable Preferred Stock may be redeemed at any time or from time to time, in whole or in part, at the election of Archon, upon notice and by resolution of Archon's Board of Directors (the "Board"). See Ex. A at 7 P. 3(a). In the event of an optional redemption, holders of Exchangeable Preferred Stock "shall be entitled to receive . . . an amount per share equal" to a measurement identified in the Certificate as the "Liquidation Preference". Ex. A at P. 3(a). The "Liquidation Preference", in turn, is defined in the Certificate to be equal to "the sum of (i) $2.14, plus (ii) an amount equal to all accrued and unpaid dividends for the then current Dividend Period, through the date of liquidation, dissolution or winding up, plus all prior Dividend Periods, whether or not declared[.]" Ex. A at P. 7. 27. The Liquidation Preference per the Certificate is therefore calculated by multiplying the then applicable Dividend Rate for each Dividend Period by the sum of (a) $2.14 and (b) the aggregate amount of the accrued and unpaid dividends calculated on a compound basis for such Dividend Period. Calculation of Fully Compounded Redemption Price 28. Because Archon has never paid any cash dividends with respect to the Exchangeable Preferred Stock, all dividends subsequent to the sixth Dividend Payment Date have accrued and compounded at the then applicable Dividend Rate in accordance with the Certificate. 29. As of the date of this Complaint, when accrued and unpaid dividends with respect to each share of Exchangeable Preferred Stock are compounded and calculated in accordance with the terms of the Certificate, the Liquidation Preference equals $8.69 per share (the "Fully Compounded Redemption Price"). The Proposed Redemption Price is in Violation of the Certificate 30. On July 31, 2007, Archon issued a Notice of Redemption and related Letter of Transmittal to the holders of outstanding shares of Exchangeable Preferred Stock announcing its intent to "redeem all of the outstanding shares of the [Exchangeable] Preferred Stock issued 8 and outstanding as of the close of business on August 31, 2007" (the "Notice"). The Notice states that issued and outstanding shares of the Exchangeable Preferred Stock will be redeemed at "the redemption price of $5.241 per share" (the "Proposed Redemption Price"). 31. The Notice also states that, upon redemption, the Exchangeable Preferred Stock will "be delisted from further trading." 32. Archon's calculation of the Proposed Redemption Price applies the per annum rate to the amount $2.l4 but does not apply it to the "amount equal to all accrued and unpaid dividends." 33. As set forth above, the Certificate expressly provides that the Liquidation Preference is calculated by applying the per annum rate to the "sum of (i) $2.14, plus (ii) an amount equal to all accrued and unpaid dividends for the then current Dividend Period, through the date of liquidation, dissolution or winding up, plus all prior Dividend Periods, whether or not declared[.]" Ex. A at P. 7. (emphasis added). 34. Archon's calculation of accrued and unpaid dividends as of the record date of the proposed optional redemption ignores clause (ii) of the Dividend Calculation Provision and is therefore calculated in a manner contrary with the express terms of the Certificate. Effective Difference between the Fully Compounded Redemption Price and Proposed Redemption Price 35. The difference between the Fully Compounded Redemption Price and Archon's Proposed Redemption Price is $3.45 per share of Exchangeable Preferred Stock. 36. Per the terms of the Certificate, and applying the Fully Compounded Redemption Price, Plaintiffs' aggregate ownership of the Exchangeable Preferred Stock is valued as $18,229,978. 9 37. Archon's improper Proposed Redemption Price is calculated in a manner contrary to the Certificate and incorrectly values Plaintiffs' aggregate ownership of the Exchangeable Preferred Stock as $10,994,627. 38. The difference between the proper valuation of Plaintiffs' aggregate ownership of Exchangeable Preferred Stock and Archon's improper valuation of Plaintffs' aggregate ownership of Exchangeable Preferred Stock is $7,235,351. 39. By effectuating the proposed optional redemption, Paul Lowden (the Chairman and CEO of Archon), as a holder of approximately 75% of the shares of Archon's common stock and approximately 18% of the shares of Exchangeable Preferred Stock, stands to receive a net benefit of approximately $8.7 million. 40. Archon has previously attempted to undervalue the Exchangeable Preferred Shareholders' interests by disclosing redemption prices for the Exchangeable Preferred Stock in its public filings without properly compounding accrued and unpaid dividends pursuant to the Certificate. 41. Prior to filing this complaint, representatives of certain Plaintiffs, including, Magten and Mercury, notified Archon that its previously stated redemption prices failed to compound accrued and unpaid dividends. Archon has, however, refused to acknowledge the proper dividend calculation under the Certificate. BREACH OF CONTRACT ------------------ (COUNT I) --------- 42. Plaintiffs reallege and incorporate by reference paragraphs 1-41 as set forth above. 43. The Certificate is a valid agreement. 44. The Certificate governs the Exchangeable Preferred Stock. 10 45. The calculation of dividends of the Exchangeable Preferred Stock is governed by Paragraph 2(a) of the Certificate. 46. Plaintiffs have fully performed under the terms of the Certificate. 47. Plaintiffs purchased the Exchangeable Preferred Stock for valuable consideration. 48. In exchange for the consideration, Archon agreed to be bound by all terms of the Certificate, including the calculation of dividends contained in the Certificate. 49. Archon's calculation of the redemption price does not take into account the compounding of unpaid and accrued dividends as required by the terms of the \Certificate. 50. Although not required to do so, Plaintiffs have notified Archon of its breach of the Certificate. 51. Archon has been non-responsive to inquiries from certain of the Plaintiffs and has failed to acknowledge the validity of the dispute regarding the calculation of the Liquidation Preference. 52. Archon's calculation of the Proposed Redemption Price without compounding dividends amounts to an unauthorized and unilateral amendment to the Certificate that materially and adversely affects the rights of the Plaintiffs as holders of the Exchangeable Preferred Stock and was done without the required approval of two-thirds of the Exchangeable Preferred Stock holders as set forth in the Certificate. 53. Archon is in breach of the Certificate and is liable to Plaintiffs for any and all damages arising from the failure to compound dividends, its unauthorized unilateral amendment to the Certificate and for Plaintiffs' attorneys' fees, expenses and costs incurred in enforcing Plaintiffs' rights under the Certificate. 11 CLAIM FOR ANTICIPATORY BREACH OF CONTRACT ----------------------------------------- (COUNT II) ---------- 54. Plaintiffs reallege and incorporate by reference paragraphs 1-53 as set forth above. 55. As set forth above, Archon's Notice announced its intent to redeem all of the outstanding shares of the Exchangeable Preferred Stock issued and outstanding as of the close of business on August 31, 2007 at the proposed redemption price of $5.241 per share. 56. As set forth above, Archon's calculation of the proposed redemption price contained in the Notice does not take into account the compounding of unpaid and accrued dividends as required by the terms of the Certificate. 57. Archon's Notice announcing the proposed redemption price of $5.241 per share of Exchangeable Preferred Stock is a clear, positive and unequivocal repudiation of its duties under the terms of the Certificate. 58. Archon's issuance of the Notice with the proposed redemption price is an anticipatory repudiation and material breach of the Certificate and Archon is liable to Plaintiffs for any and all damages arising from the failure to discharge its duties under the Certificate and for Plaintiffs' attorneys' fees, expenses and costs incurred in enforcing Plaintiffs' rights under the Certificate. CLAIM FOR DECLARATORY RELIEF ---------------------------- PURSUANT TO 28 U.S.C. ss. 2201 ------------------------------ (COUNT III) ----------- 59. Plaintiffs reallege and incorporate by reference paragraphs 1-58 as set forth above. 12 60. An actual controversy has arisen and now exists between Plaintiffs and Archon concerning the calculation of dividends and Liquidation Preference of the Exchangeable Preferred Stock, which is governed by Paragraph 2(a) of the Certificate. 61. The parties are unable to agree upon the proper methodology for calculating accrued and unpaid cash dividends and the Liquidation Preference under that Paragraph 2 of the Certificate. 62. Plaintiffs claim that dividends on the Exchangeable Preferred Stock accumulate at a compounded rate, while Archon has determined to calculate the accrued dividends without compounding. 63. Plaintiffs are holders of Exchangeable Preferred Stock whose interests are damaged by Archon's calculation, which undervalues Plaintiffs' Exchangeable Preferred Stock. 64. The difference of $7,235,351 between the proper valuation of Plaintiffs' aggregate ownership of Exchangeable Preferred Stock and Archon's improper valuation of Plaintiffs' aggregate ownership of Exchangeable Preferred Stock, is substantial. 65. The Certificate contains no mechanism for dispute resolution or form of relief for breach thereof. 66. Per the Notice, the proposed optional redemption will take place on August 31, 2007. 67. A judicial declaration is therefore necessary and appropriate. 68. Accordingly, Plaintiffs seek a declaratory judgment from this Court: (a) establishing that the proper calculation of dividends under the Certificate involves a compounded rate; and (b) providing for Plaintiffs' attorneys' fees, expenses and costs incurred in obtaining this declaration. 13 PRAYER FOR RELIEF ----------------- WHEREFORE, Plaintiffs respectfully request this Court enter an Order: (a) finding Archon has breached its obligations under the Certificate and awarding Plaintiffs full compensation of any and all available damages suffered by Plaintiffs as a result of Archon's breach of the Certificate; (b) finding that Archon's issuance of the Notice with the improper redemption price is anticipatory breach of a material term of the Certificate and awarding Plaintiffs full compensation of any and all available damages suffered as a result of Archon's anticipatory breach of the Certificate; (c) declaring that if Archon elects to redeem the Exchangeable Preferred Stock, the dividends be properly calculated and compounded per the terms of the Certificate in an amount no less than $7,235,351 up through and including the date of final judgment; (d) an order calling for Archon to reimburse Plaintiffs' attorneys' fees, expenses and costs incurred in enforcing Plaintiffs rights; and (e) such other and further relief as the Court may deem appropriate. 14 DEMAND FOR JURY TRIAL --------------------- Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all triable issues as of right by jury in the above action. DATED this 27th day of August, 2007. By:/s/ Richard J. Pocker ------------------------------------------ Richard J. Pocker, NV Bar No. 3568 BOIES, SCHILLER & FLEXNER LLP 300 South Fourth Street Suite 800 Las Vegas, NV 89101 Telephone: (702) 382-7300 Fax: (702) 382-2755 Jonathan D. Schiller, DC Bar No. 185496 Jonathan Sherman, DC Bar No. 468539 Jack A. Simms, DC Bar. No. 501921 BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, NW Washington, D.C. 20015 Telephone: (202) 237-2727 Fax: (202) 237-6131 Attorneys for Plaintiffs -----END PRIVACY-ENHANCED MESSAGE-----