S-8 1 ds8.txt REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on May 10, 2001 Registration No. 333-___________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _______________ Form S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______________ PINNACLE ENTERTAINMENT, INC. (Exact name of issuer as specified in its charter) Delaware 95-3667491 (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification number) 330 North Brand Boulevard, Suite 1100 Glendale, CA 91203 (818) 662-5900 Second Amendment and Restatement of the Pinnacle Entertainment, Inc. 401(k) Investment Plan (Full title of the Plan) LOREN S. OSTROW, ESQ. Copy to: 330 North Brand Boulevard, Suite 1100 ALVIN G. SEGEL, ESQ. Glendale, CA 91203 ASHOK MUKHEY, ESQ. (818) 662-5900 Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 (Name, address including zip code, and telephone number, including Los Angeles, CA 90067 area code, of registrants' agent for service) (310) 277-1010
CALCULATION OF REGISTRATION FEE
============================================================================================================== Proposed Proposed Amount to be Maximum Maximum Title of Registered Offering Price Aggregate Amount of Securities to be Registered Shares Per Share* Offering Price* Registration Fee* -------------------------------------------------------------------------------------------------------------- Common Stock, $.10 par value 500,000 $9.275 $4,637,500.00 $1,159.38 -------------------------------------------------------------------------------------------------------------- Interests in the Plan Indeterminate N/A N/A 0 ==============================================================================================================
_____________ (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) 500,000 shares of Common Stock are offered pursuant to the Registrant's 401(k) Investment Plan. * Estimated solely for the purpose of computing the registration fee as the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on May 9, 2001 pursuant to Rule 457(h) and Rule 457(c) of the Securities Act. EXPLANATORY NOTE This registration statement relates to 500,000 shares of the Registrant's Common Stock offered pursuant to the Registrant's Amended and Restated 401(k) Investment Plan (the "Plan"). The Plan and amendments to the Plan have been filed as Exhibit 4.1 to this Form S-8. -2- PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information The documents containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1). Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. In accordance with Rule 428 under the Securities Act, these documents and the documents incorporated by reference in the Registration Statement pursuant to Item 3 of Part II of this Form taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Item 2. Registrant Information and Employee Plan Annual Information Information required by Item 2 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents heretofore filed by Pinnacle Entertainment, Inc., a Delaware corporation (the "Registrant"), under the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by reference: (1) the Registrant's latest Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed April 2, 2001; (2) the Registrant's Current Report on Form 8-K, filed January 24, 2001; (3) the Registrant's Current Report on Form 8-K, filed January 16, 2001; and (4) the description of the Registrant's Common Stock set forth in the Registrant's Registration Statement on Form 8-A, filed November 21, 1997. In addition, 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 which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. -3- Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law ("DGCL") provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation or business association, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. As permitted by Section 102(b)(7) of the DGCL, the Registrant's Certificate of Incorporation, as amended, includes a provision that limits a director's personal liability to the Registrant or its stockholders for monetary damages for breaches of his or her fiduciary duty as a director. Article XIII of the Registrant's Certificate of Incorporation, as amended, provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty to the fullest extent permitted by the DGCL. As permitted by Section 145 of the DGCL, the Registrant's Bylaws provide that, to the fullest extent permitted by the DGCL, directors, officers and certain other persons who are made, or are threatened to be made, parties to, or are involved in, any action, suit or proceeding will be indemnified by the Registrant with respect thereto. The Registrant maintains insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of the policies, against expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been directors or officers of the Registrant. -4- Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit Number Description ------ ----------- 4.1 Second Amendment and Restatement of the Pinnacle Entertainment, Inc. 401(k) Investment Plan, as amended. 4.2 Internal Revenue Service Determination Letter as to the qualification of the Plan under Section 401 of the Internal Revenue Code 23.1 Consent of Arthur Andersen LLP 24 Power of Attorney (included on signature pages filed herewith) Item 9. Undertakings. (a) 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 of 1933; (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. -5- (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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. -6- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant hereby 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 Glendale, state of California, on this 16th day of April 2001. PINNACLE ENTERTAINMENT, INC. By: /s/ Loren S. Ostrow --------------------------------- Loren S. Ostrow Senior Vice President and General Counsel POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul R. Alanis and Loren S. Ostrow, and each of them, his attorneys-in-fact and agents, each with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or the substitute or substitutes of any or all of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date --------- ----- ---- /s/ Paul. R. Alanis Chief Executive Officer, President, April 13, 2001 _____________________ Chief Operating Officer and Director Paul R. Alanis (Principal Executive Officer) /s/ Bruce C. Hinckley Vice President, Treasurer April 13, 2001 _____________________ and Chief Financial Officer Bruce C. Hinckley (Principal Financial and Accounting Officer)
-7- /s/ R.D. Hubbard Chairman of the __________________________ Board of Directors April 25, 2001 R.D. Hubbard /s/ Robert T. Manfuso Director April 25, 2001 __________________________ Robert T. Manfuso /s/ James L. Martineau Director April 25, 2001 __________________________ James L. Martineau /s/ Gary G. Miller Director April 16, 2001 __________________________ Gary G. Miller /s/ Michael Ornest Director April 25, 2001 __________________________ Michael Ornest /s/ Timothy J. Parrott Director April 25, 2001 __________________________ Timothy J. Parrott /s/ Lynn P. Reitnouer Director April 25, 2001 __________________________ Lynn P. Reitnouer /s/ Marlin Torguson Director April 18, 2001 __________________________ Marlin Torguson
The Plan. Pursuant to the requirements of the Securities Act, the administrator of the Plan has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Glendale, state of California, on this 16th day of April, 2001. Pinnacle Entertainment, Inc. 401(k) Investment Plan By: /s/ Bruce C. Hinckley _____________________________________ Bruce C. Hinckley, Member, Administration Committee -8- EXHIBIT INDEX ------------- Exhibit Number Description ------ ----------- 4.1 Second Amendment and Restatement of the Pinnacle Entertainment, Inc. 401(k) Investment Plan, as amended 4.2 Internal Revenue Service Determination Letter as to the qualification of the Plan under Section 401 of the Internal Revenue Code 23.1 Consent of Arthur Andersen LLP 24 Power of Attorney (included on signature pages filed herewith) -9-