AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON OCTOBER 6, 2000
S-4 REGISTRATION NO. 333-41292
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
AMENDMENT NO. 2
to
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Windsor Woodmont Black Hawk Resort Corp.
------------------------------------
(Exact name of registrant as specified in its charter)
Colorado
---------
(State or other jurisdiction
of incorporation or organization)
7993
--------------------------------------------
(Primary Standard Industrial Classification Code Number)
75-2740870
-----------------------------------
(I.R.S. Employer Identification No.)
12160 North Abrams Road, Suite 516, Dallas, Texas 75243
(214) 575-8757
-------------------------------------------------------
(Address, including ZIP Code, and telephone number,
including area code, of registrant's principal executive offices)
Daniel P. Robinowitz, CEO,
12160 North Abrams Road, Suite 516,
Dallas, Texas 75243
(214) 575-8757
-------------------------------------------------------
(Name, address, including ZIP Code, and telephone number,
including area
code, of agent for service)
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the registration statement becomes
effective.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 426(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 426(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
-----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price aggregate offering registration
securities to be registered registered per unit(1) price(1) fee
--------------------------- ---------- ----------- -------- ------------
<S> <C> <C> <C> <C>
13% First Mortgage Notes due 2005 $100,000,000 100% $100,000,000 $26,400(2)
Total registration fee $26,400(2)
------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid with July 12, 2000 filing.
The registrant hereby amends this registration statement on the date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on the date as the Securities and Exchange Commission, acting pursuant
to said section 8(a), may determine.
This Amendment No. 2 to the registration statement on Form S-4 of Windsor
Woodmont Black Hawk Resort Corp. amends Part II only and makes no changes to the
prospectus included in the registration statement.
-1-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Twelfth, Section 3 of the First Amended and Restated Articles of
Incorporation of Windsor Woodmont Black Hawk Resort Corp., included herewith as
Exhibit 3.1, provides for the indemnification of Windsor Woodmont Black Hawk
Resort Corp.'s officers and directors to the full extent permitted by Colorado
law. The officers and directors are indemnified under various provisions of the
Colorado Business Corporation Act, which provide for the indemnification of
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement in connection with threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
as officers, directors or in other capacities, except in relation to matters
with respect to which such persons shall be determined not to have acted in good
faith and in the best interests of Windsor Woodmont Black Hawk Resort Corp. With
respect to matters as to which Windsor Woodmont Black Hawk Resort Corp.'s
officers and directors and others are determined to be liable for misconduct or
negligence, including gross negligence, in the performance of their duties to
Windsor Woodmont Black Hawk Resort Corp., Colorado law provides for
indemnification only to the extent that the court in which the action or suit is
brought determines that such person is fairly and reasonably entitled to
indemnification for which the court deems proper.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to officers, directors or persons controlling Windsor Woodmont
Black Hawk Resort Corp. pursuant to the foregoing, Windsor Woodmont Black Hawk
Resort Corp. has been informed that in the opinion of the U.S. Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act, and is therefore unenforceable.
In accordance with the laws of the State of Colorado, Windsor Woodmont
Black Hawk Resort Corp.'s Bylaws authorize indemnification of a director,
officer, employee or agent of Windsor Woodmont Black Hawk Resort Corp. for
expenses incurred in connection with any action, suit, or proceeding to which he
or she is named a party by reason of his having acted or served in such
capacity, except for liabilities arising from his own misconduct or negligence
in performance of his or her duty. In addition, even a director, officer,
employee, or agent of Windsor Woodmont Black Hawk Resort Corp. who was found
liable for misconduct or negligence in the performance of his or her duty may
obtain such indemnification if, in view of all the circumstances in the case, a
court of competent jurisdiction determines such person is fairly and reasonably
entitled to indemnification. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers, or persons
controlling the issuing company in accordance with the foregoing provisions,
Windsor Woodmont Black Hawk Resort Corp. has been informed 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.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits: A list of exhibits filed with this registration statement is
contained in the index to exhibits, which is incorporated by reference.
(b) Financial Statement Schedules: None required or applicable.
II-1
<PAGE>
ITEM 22. 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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;
(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; and
(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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
each 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
(c) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
corporation being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
above-named registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Dallas, State of Texas on the 3rd day of October, 2000.
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
By: /s/ Daniel P. Robinowitz
--------------------------------------------------
Daniel P. Robinowitz, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on October 3, 2000.
Signature Title Date
--------- ----- ----
/s/ Daniel P. Robinowitz Chairman of the Board, October 3, 2000
------------------------ President and Chief
Daniel P. Robinowitz Executive Officer
/s/ Irving C. Deal Vice Chairman of the Board October 3, 2000
------------------------
Irving C. Deal
/s/ Michael L. Armstrong Executive Vice President, October 3, 2000
------------------------ Chief Financial Officer,
Michael L. Armstrong Treasurer and Assistant Secretary
(principal accounting officer)
/s/ Donald J. Malouf Secretary and Director October 3, 2000
------------------------
Donald J. Malouf
/s/ Craig F. Sullivan Director October 3, 2000
------------------------
Craig F. Sullivan
/s/ Jerry L. Dauderman Director October 3, 2000
------------------------
Jerry L. Dauderman
/s/ Jess Ravich Director October 3, 2000
------------------------
Jess Ravich
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
3.1(1) First Amended and Restated Articles of Incorporation of Windsor
Woodmont Black Hawk Resort Corp.
3.2(1) First Amended and Restated Bylaws of Windsor Woodmont Black Hawk
Resort Corp.
4.1(1) Indenture, dated as of March 14, 2000, by and between Windsor
Woodmont Black Hawk Resort Corp. and SunTrust Bank, as trustee
4.2(2) Revised Form of 13% First Mortgage Notes, Series B
4.3(1) Form of Series A Warrant certificates dated March 14, 2000 issued
to unit purchasers for the purchase of up to 342,744 shares of
common stock, issued to Hyatt Gaming Management, Inc. for the
purchase of up 33,887 shares of common stock and issued to U.S.
Bancorp Libra, as placement agent, for the purchase of up to
80,031 shares of common stock
4.4(1) Form of Series B Warrant certificates dated March 14, 2000 to
purchase up to 257,058 shares of common stock issued to the
purchasers of the Series B Preferred Stock
4.5(1) First Warrant Agreement dated as of March 14, 2000, by and
Windsor Woodmont Black Hawk Resort Corp. and SunTrust Bank, as
warrant agent, relating to the issuance to the unit purchasers of
warrants for the purchase of 342,744 shares of common stock, the
issuance to Hyatt Gaming Management, Inc. of warrants to purchase
33,887 shares of common stock and the issuance to U.S. Bancorp
Libra, as placement agent, of warrants to purchase 80,031 shares
of common stock
4.6(1) Second Warrant Agreement, dated as of March 14, 2000, by and
between Windsor Woodmont Black Hawk Resort Corp. and SunTrust
Bank, as warrant agent, relating to the issuance to the
purchasers of the Series B Preferred Stock of warrants for the
purchase of 257,058 shares of common stock
4.7(1) A/B Exchange Registration Rights Agreement, dated as of March 14,
2000, among Windsor Woodmont Black Hawk Resort Corp. and the unit
purchasers
4.8(1) Warrant Registration Rights Agreement, dated as of March 14,
2000, by and among Windsor Woodmont Black Hawk Resort Corp., each
of the purchasers of the units, Hyatt Gaming Management, Inc.,
each of the purchasers of the Series B Preferred Stock and U.S.
Bancorp Libra
II-5
<PAGE>
4.9(1) Windsor Woodmont Black Hawk Resort Corp agrees to furnish to the
Securities and Exchange Commission, upon its request, the
instruments defining the rights of holders of long term debt
where the total amount of securities authorized thereunder does
not exceed 10% of the company's total assets
5.1(1) Opinion of Schlueter & Associates, P.C. as to the legality of the
securities being registered
10.1(1) Management Agreement dated as of February 2, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming
Management, Inc. and First Amendment to Management Agreement
10.2(1) Subordination, Non-Disturbance and Attornment Agreement dated as
of March 14, 2000, by and among Windsor Woodmont Black Hawk
Resort Corp., Hyatt Gaming Management, Inc. and SunTrust Bank, a
trustee
10.3(1) Architect's Agreement dated as of January 31, 2000 by and between
Windsor Woodmont, LLC and Paul Steelman, Ltd.
10.4(1) Construction Management Agreement dated February 1, 2000 by and
between Windsor Woodmont, LLC and Building Sciences, Inc.
10.5(2) Construction Agreement dated as of January 11, 2000 by and
between Windsor Woodmont, LLC and PCL Construction Services, Inc.
10.6(2) Excavation Agreement dated as of December 31, 1999, by and
between Windsor Woodmont, LLC and D.H. Blattner & Sons, as
amended
10.7(1) Subdivision Agreement dated December 29, 1997 by and between
Windsor Woodmont, LLC and the City of Black Hawk, including the
First Addendum, dated March 25, 1998, Second Addendum, dated May
27, 1998, and Third Addendum, dated March 29, 2000, thereto
10.8(1) Deed of Trust to Public Trustee, Security Agreement, Fixture
Filing and Assignment of Rents, Leases and Leasehold Interest,
dated as of March 14, 2000, by Windsor Woodmont Black Hawk Resort
Corp.
10.9(1) Security Agreement, dated as of March 14, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. and SunTrust Bank, as
trustee
10.10(1) Pledge and Assignment Agreement, dated as of March 14, 2000, by
and among Windsor Woodmont Black Hawk Resort Corp. in favor of
SunTrust Bank, as trustee
10.11(1) Collateral Assignment, dated as of March 14, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. in favor of SunTrust
Bank, as trustee
II-6
<PAGE>
10.12(1) Loan Agreement, dated as of March 14, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming
Management, Inc.
10.13(1) Hyatt Gaming Deed of Trust to Public Trustee, Security Agreement,
Fixture Filing and Assignment of Rents, Leases and Leasehold
Interests,, dated as of March 14, 2000, by Windsor Woodmont Black
Hawk Resort Corp. to the Public trustee of the County of Gilpin,
Colorado, for the benefit of Hyatt Gaming Management, Inc.
10.14(1) Hyatt Gaming Security Agreement, dated as of March 14, 2000, by
and between Windsor Woodmont Black Hawk Resort Corp. and Hyatt
Gaming Management, Inc.
10.15(1) Hyatt Gaming Pledge and Assignment Agreement, dated as of March
14, 2000, by and among Windsor Woodmont Black Hawk Resort Corp.
in favor of Hyatt Gaming Management, Inc.
10.16(1) Hyatt Gaming Collateral Assignment, dated as of March 14, 2000,
by and between Windsor Woodmont Black Hawk Resort Corp. in favor
of Hyatt Gaming Management, Inc.
10.17(1) General Assignment made as of March 14, 2000 by Windsor Woodmont,
LLC in favor of Windsor Woodmont Black Hawk Resort Corp.
10.18(1) Intercreditor Subordination and Collateral Agreement, dated as of
March 14, 2000, by and among SunTrust Bank, as trustee, Hyatt
Gaming Management, Inc. and Windsor Woodmont Black Hawk Resort
Corp.
10.19(1) Cash Collateral and Disbursement Agreement dated as of March 14,
2000 by and among SunTrust Bank, as trustee, Windsor Woodmont
Black Hawk Resort Corp., Hyatt Gaming Management, Inc., Norwest
Bank Minnesota, N.A., as disbursement agent, First American
Heritage Title Company, as construction escrow agent, and RE
TECH+, Inc., as independent construction consultant
10.20(1) Account Agreement, dated as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., SunTrust Bank, as
trustee, and Norwest Bank Minnesota, N.A., as securities
intermediary
10.21(1) Interim Interest Reserve Account Agreement, dated as of March 14,
2000, by and among Windsor Woodmont Black Hawk Resort Corp.,
SunTrust Bank, as trustee, and Norwest Bank Minnesota, N.A., as
securities intermediary
10.22(1) Interest Reserve Account Agreement, dated as of March 14, 2000,
by and between Windsor Woodmont Black Hawk Resort Corp. and
SunTrust Bank, as trustee and securities intermediary
II-6
<PAGE>
10.23(1) Hyatt Gaming Account Agreement, dated as of March 14, 2000, by
and among Windsor Woodmont Black Hawk Resort Corp., Hyatt Gaming
Management, Inc. and Norwest Bank Minnesota, N.A., as securities
intermediary
10.24(1) Shareholders Agreement, dated as of March 14, 2000
10.25(1) Office Lease between Dallas Office Portfolio, L.P., as landlord,
and Windsor Woodmont Black Hawk Resort Corp., as tenant
10.26(1) Site Improvement Agreement, dated March 29, 2000, by and between
the City of Black Hawk, Colorado, and Windsor Woodmont Black Hawk
Resort Corp.
10.27(1) Escrow Agreement, dated March 29, 2000, by and between the City
of Black Hawk, Colorado, Windsor Woodmont Black Hawk Resort Corp.
and Norwest Bank Minnesota, N.A.
10.28(1) Settlement Agreement, dated January 31, 2000, by and between
Windsor Woodmont, LLC and D.H. Blattner & Sons, Inc.
10.29(1) Escrow Agreement, dated March 28, 2000, by and among D.H.
Blattner & Sons, Inc. Windsor Woodmont Black Hawk Resort Corp.
and Norwest Bank Minnesota, N.A.
10.30(1) Incentive Stock Option Plan
12.1(1) Statement re Computation of Ratio of Earnings to Fixed Charges
and Preferred Dividends
16.1(1) Letter from PricewaterhouseCoopers re: change in certifying
accountant
23.1(1) Consent of Arthur Andersen LLP
23.2(1) Consent of Schlueter & Associates, P.C. (contained in Exhibit
5.1)
25.1(2) Form T-1 Statement of Eligibility under the Trust Indenture Act
1939 of SunTrust Bank
27.1(1) Financial Data Schedule
99.1(1) Form of Letter of Transmittal
99.2(1) Form of Notice of Guaranteed Delivery
99.3(2) Offer for Outstanding Notes
99.4(2) Notice to Holders
99.5(2) Guidelines for Certification of Taxpayer Identification Number
----------------
(1) Previously filed.
(2) Filed herewith.
II-7
