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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 22, 2000
REGISTRATION STATEMENT NO. 333-37450
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION -STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VENTURE CATALYST INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
UTAH 33-0618806
(State Of Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
---------------------
16868 VIA DEL CAMPO COURT, SUITE 200
SAN DIEGO, CALIFORNIA 92127
(858) 385-1000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
---------------------
KEVIN MCINTOSH
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
VENTURE CATALYST INCORPORATED
16868 VIA DEL CAMPO COURT, SUITE 200
SAN DIEGO, CALIFORNIA 92127
(858) 385-1000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
---------------------
COPY TO:
Glenn D. Smith, Esq.
Venture Catalyst Incorporated
3420 Ocean Park Boulevard, Suite 3020
Santa Monica, California 90405
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please 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 462(c) 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH 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 SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Subject to completion, preliminary prospectus dated June 22, 2000
VENTURE CATALYST INCORPORATED
450,460
SHARES OF COMMON STOCK
This prospectus relates to the offer and sale of up to 450,460 shares of
common stock of Venture Catalyst Incorporated from time to time by the selling
shareholders listed on page 10 of this prospectus.
Venture Catalyst will not receive any part of the proceeds from the sale of
the shares of common stock covered by this prospectus. We have agreed to bear
the expenses of registration of the shares. The selling shareholders may offer
the shares through brokers, dealers or agents or directly to purchasers. These
transactions may be effected in the over-the-counter market or otherwise, at
market prices prevailing at the time of sale or at privately negotiated prices.
Our common stock is listed on the Nasdaq National Market under the symbol
VCAT. On June 19, 2000, the closing price of our common stock as quoted on
Nasdaq was $4.9375 per share.
WE URGE YOU TO READ THE "RISK FACTORS" SECTION BEGINNING ON PAGE 5 OF THIS
PROSPECTUS FOR A SPECIFIC DESCRIPTION OF RISKS ASSOCIATED WITH PURCHASING OUR
COMMON STOCK THAT YOU SHOULD CONSIDER BEFORE MAKING YOUR INVESTMENT DECISION.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
You should rely only on the information contained in this document or that
we have referred you to. We have not authorized anyone to provide you with
different information.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
The date of this Prospectus is _____, 2000.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
WHERE YOU CAN FIND MORE INFORMATION...............................................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...................................................................3
PROSPECTUS SUMMARY................................................................................................4
THE COMPANY ......................................................................................................4
RISK FACTORS......................................................................................................5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS................................................................10
USE OF PROCEEDS..................................................................................................10
SELLING STOCKHOLDERS.............................................................................................10
PLAN OF DISTRIBUTION.............................................................................................11
LEGAL MATTERS....................................................................................................12
EXPERTS .........................................................................................................13
</TABLE>
NOTE TO READERS OF THIS PROSPECTUS
We were incorporated in 1980 in Utah. When we refer to "us," "we," "our,"
"the Company" and "Venture Catalyst" in this prospectus, we mean Venture
Catalyst Incorporated and its consolidated subsidiaries. Our address is 16868
Via Del Campo Court, Suite 200, San Diego, California 92127. Information
contained on our web-site does not constitute part of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act, with respect to the shares offered by this prospectus. This
prospectus does not contain all the information set forth in the Registration
Statement and its exhibits. Certain portions of the Registration Statement have
been omitted as permitted by the rules and regulations of the SEC. Copies of the
Registration Statement (including the omitted portions) are available from the
SEC upon payment of a fee. For further information, reference is made to the
Registration Statement and the exhibits filed therewith. Statements contained in
this prospectus or the Registration Statement relating to the contents of any
contract or other document filed as an exhibit to the Registration Statement are
not necessarily complete, and in each instance are qualified in all respects by
the full text of such contract or document.
You should rely only on the information or representations provided in this
prospectus or incorporated by reference. We have not authorized anyone else to
provide you with different information. The selling shareholders have agreed not
to make an offer of the shares of our common stock (the "Common Stock") in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the cover page.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any documents we file at the
SEC's public reference room in Washington, D.C. at 450 Fifth Street, N.W.,
Washington, D.C. 20549, or in the public reference rooms located in New York,
New York and Chicago, Illinois. Please call the SEC at 1(800) SEC-0330 for
further information on the public reference rooms. Our SEC filings are also
available to the public at the SEC's web-site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information we later file with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act:
o Annual Report on Form 10-KSB for the fiscal year ended June 30, 1999;
o Quarterly Reports on Form 10-QSB for the quarters ended September 30,
1999, December 31, 1999, and March 31, 2000;
o Current Reports on Form 8-KSB dated June 8, 1999 and September 9,
1999; and
o Proxy Statement on Schedule 14A dated April 27, 2000.
We will provide without charge to any person to whom this prospectus is
delivered, upon written or oral request of such person, a copy of any or all of
the documents which have been incorporated by reference in this prospectus.
Requests for copies should be directed to Kevin McIntosh, Chief Financial
Officer, 16868 Via Del Campo Court, Suite 200, San Diego, California 92127,
telephone (858) 385-1000.
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PROSPECTUS SUMMARY
Many of the matters set forth in this prospectus contain forward-looking
statements that are subject to risks and uncertainties that could cause actual
results to differ materially from those set forth in this prospectus. We refer
you to cautionary information contained elsewhere in this prospectus and in
other documents we file with the SEC from time to time.
THE COMPANY
Venture Catalyst Incorporated provides venture services to support and
facilitate the development of emerging businesses. We act as an entrepreneur's
ally in organizing, capitalizing and growing businesses at a faster rate. We
offer comprehensive web development services, investor relations, public
relations, marketing, strategic planning, executive recruitment, infrastructure,
state-of-the-art incubation facilities, and professional and technical
expertise. Our objective is work with entrepreneurs during every stage of their
financial growth. In connection with the implementation of our strategy, we do,
from time to time, make investments, or take all or a portion of our fees, in
securities of our clients.
We have provided many of these services to the Barona Group of Capitan
Grande Band of Mission Indians (the "Barona Tribe") since 1991. We currently
provide consulting services to the Barona Tribe in connection with the Barona
Tribe's operation of the Barona Casino and development of the Barona Valley
Ranch, which includes a championship golf course and a proposed resort hotel.
Our services are provided under the terms of the Amended and Restated Consulting
Agreement, as amended by Modification #1 (the "Consulting Agreement"), which
expires in March 2004.
In August 1998, we acquired Cyberworks, Inc. ("Cyberworks"), a web-site
development and Internet marketing company to expand our Internet services,
including those of Worldwide Media Holdings, N.V. ("WMH"). Cyberworks is a
wholly-owned subsidiary of the Company. Cyberworks' services include full
service web-site development, strategic consulting for interactive and online
business development and custom Internet applications. Cyberworks portfolio
includes more than 350 local, national and international clients, in a wide
array of industries.
In July 1999, we expanded our services to include broader consulting
services to emerging and Internet businesses, to further grow our client base.
We provide our spectrum of services to public and private companies. In
connection with this expansion, we acquired the assets of Typhoon Capital
Consultants, LLC, an investor relations and Internet consulting firm. In January
2000 we acquired all of the outstanding shares of capital stock of webinc., Inc.
("webinc"), a recently-organized corporation whose business plan focused on
consulting, incubation and venture capital-related services to start-up and
early stage companies focusing on Internet infrastructure and technology. The
operations of webinc have been merged into Venture Catalyst.
In March 2000 we acquired CTI, a full-service technology management firm.
CTI's services include business application development, network management,
web-development and hosting, and hardware sales and service. CTI provides its
services to a broad spectrum of clients, from large corporations to emerging
businesses.
In July 1999, we launched the "Vegas At Home" portal web-site to provide
both the gaming industry and its patrons with an online central location
containing a variety of gaming related products, merchandise, information and
links to most significant traditional casinos. We are in the process of creating
an updated Vegas At Home portal site and have temporarily shut down the existing
site. The new site is expected to be re-launched mid calendar year 2000.
In March 1998, we established WMH, a Netherland Antilles corporation, to
leverage our gaming business expertise. WMH offered comprehensive marketing,
advertising, technical and distribution services for Internet related gaming
businesses. In February 2000, our Board of Directors adopted a plan to
discontinue this business and is in the process of shutting down and liquidating
WMH.
Our principal offices are located at 16868 Via Del Campo Court, Suite 200,
San Diego, California 92127. Our telephone number is (858) 385-1000. Our
web-site address is www.vcat.com.
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RISK FACTORS
Any investment in our Common Stock is very risky. You should carefully
consider the risks and uncertainties described below, as well as the other
information contained herein and the other information we have referred you to,
in deciding whether to invest in our Common Stock. If any of the following
events actually occurs, our business, financial condition and results of
operations may suffer materially. As a result, the market price of our Common
Stock could decline, and you could lose all or part of your investment in our
Common Stock.
OUR REVENUE DEPENDS IN LARGE PART ON A SINGLE CUSTOMER AND LOSS OF THAT CUSTOMER
COULD SIGNIFICANTLY DAMAGE OUR BUSINESS
We derive a majority of our revenue from services provided to the Barona
Tribe, including the Barona Casino, under the Consulting Agreement. The fees
paid to us are based upon a net profit formula that includes the Barona Casino's
income and expenses. Accordingly, although gross revenues of the Barona Casino
may increase, the Company's consulting revenue may not correspondingly increase
because expenses at the Barona Casino also may have increased. For the fiscal
year ended June 30, 1999, and the nine months ended March 31, 2000, revenues
from services to the Barona Tribe declined as a percentage of sales. While we
are continuing to take steps to diversify our business activities and resulting
revenues, including our current plan to acquire, invest in and provide services
for emerging businesses, those activities are producing revenues significantly
lower than revenues provided from our services to the Barona Tribe. In
connection with the Barona Casino's $150 million expansion project, the Barona
Casino has incurred, and expects to incur, significantly higher expenses. As a
result, the consulting fees paid to us during the expansion project may
decrease. Any material reduction in fees payable to us in connection with the
Consulting Agreement could have a material adverse affect on the operating
results and financial condition of the Company.
LEGAL UNCERTAINTIES RELATING TO NATIVE AMERICAN GAMING; LIMITED RECOURSE AGAINST
TRIBES AND TRIBAL ASSETS
Federal, state and tribal governments extensively regulate gaming on Native
American land. Certain vendors such as the Company must apply for a license from
the Barona Tribe and are subject to a determination of suitability by the
California gaming agency. Findings of suitability are granted for two years.
Consulting Agreement
The Consulting Agreement has not yet been approved by the regulatory
authorities. The National Indian Gaming Commission (the "NIGC") conducted an
investigation of the past relationship between the Barona Tribe and the Company
as manager of the Barona Casino that resulted in a January 1997 settlement
agreement.
In April 1997, the Company received a letter from the NIGC questioning
whether the Consulting Agreement was in fact a management contract. In March
1999, the NIGC started a preliminary review of the relationship between the
Barona Tribe and the Company, which has included a review of the Consulting
Agreement. This review is currently pending. There is no assurance that the NIGC
will determine that the Consulting Agreement is not a management contract. If
the NIGC concludes that the Consulting Agreement is not a management agreement,
the NIGC will forward such Agreement to the Bureau of Indian Affairs ("BIA") for
its review. If the BIA determines that its approval is required, there can be no
assurance that the BIA will approve the Consulting Agreement.
Management contracts for Native American gaming facilities are subject to
approval by the NIGC and generally provide for a maximum management fee and a
maximum term. The NIGC has the power to require contract modifications under
certain circumstances or to void a contract if the management company fails to
comply with applicable laws and regulations. In addition, the Company, our
directors, persons with management responsibility, certain of our stockholders
and certain persons with a financial interest in the management agreement must
be investigated and approved by the NIGC and the tribal gaming commission in
order for a management
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contract to be approved by the NIGC and receive a license to operate a gaming
facility by the tribal gaming commission. Persons who acquire beneficial
ownership of our stock may be subject to certain reporting and qualification
procedures established by the NIGC and the tribal gaming commission. Such
limitations could adversely affect the marketability of the Common Stock or
could affect or prevent certain corporate transactions, including mergers or
other business combinations.
If the Consulting Agreement is not approved, results in fines or penalties
or is significantly modified to reduce consulting fees to us, it would have a
material adverse effect on the business and financial condition of the Company.
Limited Recourse Against Tribes and Tribal Assets
Native American tribes are sovereign nations with their own governmental
systems. Tribal officials are subject to replacement by appointment or election.
Our relationship with a tribe could improve or deteriorate under new
administrations. Good relationships with Native American tribes and their
officials, in particular the Barona Tribe, are critical to our ability to
obtain, retain and renew contracts with the tribe. Although we believe our
agreements with Native American tribes contain appropriate legal protections, a
deterioration in the relationship with a tribe could have a material adverse
effect on the Company, including possible termination of any contract.
In general, Native American tribes do not make any equity investments in
the construction, development or equipment of casinos. We have made, and may
make, advances or loans (including guarantees of indebtedness) to tribes for the
construction, development, equipment and operation of casinos for which we may
act as a consultant or manager. These amounts are not conventional indebtedness
loans subject to customary mortgages or security. If these casinos do not
generate sufficient cash flow to repay such indebtedness, our loans may not be
repaid. Our principal recourse for collection of indebtedness from a tribe or
money damages for breach or wrongful termination of a contract is from revenues,
if any, from casino operations. We have agreed to, and in the future may agree
to, subordinate the repayment of a tribe's indebtedness and payment of other
fees due to us from a tribe to other obligations of the tribe, such as
indebtedness to a commercial lender. Accordingly, in the event of a default by a
tribe, a tribe's indebtedness to us may not be repaid, if at all, until any
senior creditors have been repaid in full.
As of March 31, 2000 we have advanced approximately $6,300,000 to the
Barona Casino in connection with the ongoing expansion project. We have
committed to advance up to another $2,000,000 to the Barona Casino, if needed,
until all outside financing is obtained. These advances are scheduled to be
repaid when the $150 million bond financing is completed. In addition, the
consulting fees earned by us are now subject to a Subordination Agreement
relating to an approximately $19 million federally tax-exempt bond financing of
the Barona Tribe. We also have approximately $1,900,000 in the form of cash
pledged as a guarantee for, and hold bonds issued by to the Klamath and Modoc
Tribes and the Yahooskin Band of Snake Indians. We have agreed to hold the bonds
for a period of five years. If a default occurs, it would have a material
adverse effect on the business and financial condition of the Company.
RISKS OF BEING DEEMED AN INVESTMENT COMPANY
We may incur significant costs to avoid investment company status and may suffer
other adverse consequences if we are deemed to be an investment company under
the United States Investment Company Act of 1940, as amended (the "1940 Act"). A
company may be deemed to be an investment company if it owns investment
securities with a value exceeding 40% of its total assets, subject to certain
exclusions. Investment companies are subject to registration under, and
compliance with, the 1940 Act unless a particular exclusion or SEC safe harbor
applies. If we were deemed to be an investment company, we would become subject
to the requirements of the 1940 Act. As a consequence, we would be prohibited
from engaging in business or issuing our securities as we have in the past and
might be subject to civil and criminal penalties for non-compliance. In
addition, certain of our contracts might be voidable. Such repercussions from
being deemed an investment company could have a material adverse affect on the
Company's operating results and financial condition.
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Specifically, if we are deemed to be, and are required to register as, an
investment company, we will be forced to comply with substantive requirements
under the 1940 Act, including:
o limitations on our ability to borrow;
o limitations on our capital structure;
o restrictions on acquisitions of interests in portfolio and/or
affiliated companies;
o prohibitions on transactions with affiliates;
o restrictions on specific investments; and
o compliance with reporting, record keeping, voting, proxy disclosure
and other rules and regulations.
If we were forced to comply with the rules and regulations of the 1940 Act,
our operations would significantly change, and we would be prevented from
successfully executing our business strategy.
In addition, to avoid regulation under the 1940 Act and related SEC rules,
we may need to sell assets which we would otherwise want to retain and may be
unable to sell assets which we would otherwise want to sell. In addition, we may
be forced to acquire additional, or retain existing, income-generating or
loss-generating assets which we would not otherwise have acquired or retained
and may need to forego opportunities to acquire interests in attractive
companies that would benefit our business. If we were forced to sell, buy or
retain assets in this manner, we would be prevented from successfully executing
our business strategy.
Although investment securities currently comprise less than 40% of our
assets, fluctuations in the value of these securities or of our other assets may
cause this limit to be exceeded. This would require us to attempt to reduce our
investment securities as a percentage of our total assets. This can be attempted
in a number of ways, including the disposition of investment securities and the
acquisition of non-investment security assets. If we sell investment securities,
we may sell them sooner than we otherwise would. These sales may be at depressed
prices and we may never realize anticipated benefits from, or may incur losses
on, these investments. Some investments may not be sold due to contractual or
legal restrictions or the inability to locate a suitable buyer. Moreover, we may
incur tax liabilities when we sell assets. We may also be unable to purchase
additional investment securities that may be important to our operating
strategy. If we decide to acquire non-investment security assets, we may not be
able to identify and acquire suitable assets and businesses.
DIFFICULTY AND RISKS OF PLANNED EXPANSION; MANAGEMENT OF GROWTH
Our success depends, in part, on our ability to identify opportunities to
acquire or invest in companies that will be successful in their businesses. Our
management will have sole and absolute discretion in identifying and selecting
such companies. You will not be able to evaluate the merits of an acquisition or
investment before we proceed with the transaction.
Specifically, we intend to continue to expand through the acquisition of
businesses, technologies, products and services from other businesses and
through our investment in other emerging businesses. These activities involve a
number of special problems, including:
o difficulty in integrating acquired technologies, operations and
personnel with the existing business;
o diversion of management attention in connection with both negotiating
the acquisitions and integrating the assets and businesses;
o strain on managerial and operational resources as management tries to
oversee larger operations;
o exposure to unforeseen liabilities of acquired companies;
o the dilution of our shareholders as the result of the issuance of our
stock in connection with the acquisitions of other businesses;
o the need to incur debt; and
o the requirement to record operating costs for the amortization of
goodwill and other intangible assets, which amounts could be
significant.
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We may not be able to successfully address these problems. Moreover, our
future operating results will depend to a significant degree on our ability to
successfully manage growth and integrate acquisitions. In addition, many of our
intended investments will be in early-stage companies with limited operating
histories and limited or no revenues. We may not be able to successfully develop
these young companies or generate meaningful revenues from investments in such
companies.
Even if we identify a company for acquisition or investment, we may not be
able to complete the transaction for many reasons including:
o our inability to interest companies in aligning with us;
o our inability to agree on the terms of an acquisition or investment;
and
o incompatibility between us and the management of the company.
In addition, our planned expansion of operations may exceed our present
management, technical, financial and other resources. To manage our growth
effectively, we must continue to increase and improve our operational, financial
and management information systems and must attract, train and motivate
qualified managers and employees. There can be no assurance, however, that we
will successfully be able to achieve these goals. If we are unable to manage
growth effectively, there could be a material adverse affect on the Company's
operating results and financial condition.
SOME OF OUR VENTURE SERVICES ACTIVITIES HAVE A LIMITED OPERATING HISTORY
Certain of our venture services for emerging businesses have been offered
for less than a year. Because of our short operating history in these
activities, we are unable to provide you with significant data upon which you
can evaluate our prospects. We cannot be certain that our expanded business
strategy or the business strategies of our clients will be successful. Because
we provide services to and have interests in early stage companies and emerging
businesses and have only recently expanded our business strategy, we are exposed
to not only the business risks of our clients but also to the risks of our own
business activities.
FLUCTUATION IN THE VALUE OF OUR ASSETS
The Company's assets are, and will be, partially comprised of equity
securities of other publicly and non-publicly traded companies, and include
positions in equity securities that have experienced significant volatility in
their stock prices. We expect the number of, and our investment in, these assets
will increase in the future. The market price and valuations of the securities
that we hold in other companies may fluctuate due to market conditions and other
conditions over which we have no control. We do not directly attempt to reduce
or eliminate our market exposure on these securities.
FLUCTUATION OF OUR QUARTERLY RESULTS
Our operating results have fluctuated on a quarterly basis during the last
several years, and we expect that quarterly operating results are likely to
continue to fluctuate from quarter to quarter. Many factors, some of which are
beyond our control, have contributed to these quarterly fluctuations in the past
and may continue to do so. Such factors include:
o demand for our services;
o demand for the products and services of our clients in which we own
securities;
o specific economic conditions in the industries in which we or our
clients engage; and
o general economic conditions in the United States.
The emerging nature of many of our clients makes predictions concerning our
future revenues difficult. We believe that period-to-period comparisons of our
results of operations will not necessarily be meaningful and should not be
relied upon as indicative of our future performance. It is also possible that in
some fiscal quarters our
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operating results will be below the expectations of securities analysts and
investors. In such circumstances, the price of our Common Stock may decline.
CONCENTRATION OF OUR OWNERSHIP
L. Donald Speer, II, our Chairman of the Board and Chief Financial Officer,
beneficially owned approximately 32.8% of our outstanding common stock as of
April 24, 2000. Additionally, the members of our Board of Directors and our
executive officers collectively own approximately 40.9% of our outstanding
common stock as of April 24, 2000. The concentration of our share ownership may:
o delay or prevent a change in control of the Company;
o impede a merger, consolidation, takeover, or other transaction
involving the Company;
o discourage a potential acquirer from making a tender offer or
otherwise attempting to obtain control of the Company; or
o control election of directors of the Company.
In addition, the Company currently possesses a right and option until
December 25, 2001, to purchase all or part of Richard Harrison's, a former
officer and director, 750,000 shares of Common Stock at $2.50 per share.
DEPENDENCE ON CERTAIN KEY PERSONNEL; DIFFICULTY IN ATTRACTING AND RETAINING
QUALIFIED EMPLOYEES
Our performance is substantially dependent on the performance of its
executive officers and other key employees, in particular, Mr. Speer and Sanjay
Sabnani, our President and Chief Operating Officer.
In addition, our operations depend to a great extent on the management
efforts of its other officers and other key personnel and on the ability to
attract new key personnel and retain existing key personnel. Competition is
intense for highly skilled web site development employees in particular. The
loss of the services of any member of our senior management may significantly
delay or prevent the achievement of business development and other business
objectives. Our ability to attract and retain qualified personnel, consultants
and advisors is critical to our success. In order to pursue our business
strategy, we will need to hire additional qualified technical and management
personnel. Since we face competition from numerous Web development companies,
capital providers and other related businesses, we may not be able to avoid
increased costs in order to do so. We may be unable to attract and retain these
individuals and other key employees, and our failure to do so would have a
material adverse effect on the Company's operating results and financial
condition.
Our officers and key employees are not bound by non-competition agreements
that extend beyond their employment at the Company, and there can be no
assurance that employees will not leave the Company or compete against us.
VOLATILITY OF OUR COMMON STOCK PRICE
The trading price of the Company's common stock has been, and will likely
continue to be, subject to wide fluctuations because of regulatory developments,
performance of our public clients in which we own equity securities, quarterly
variations in the Company's operating results, announcements of new services or
business activities by the Company or its competitors, general market
fluctuations, and other events and factors. These factors, coupled with the
small public float, have in the past, and could in the future, result in wide
fluctuations in the market trading price.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, and the other reports we have filed from time to time with
the SEC, contain forward-looking statements within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act. Forward-looking
statements deal with our current plans, intentions, beliefs and expectations and
statements of future economic performance. Statements containing terms like
"believes," "does not believe," "plans," "expects," "intends," "estimates,"
"anticipates" and other phrases of similar meaning are considered to imply
uncertainty and are forward-looking statements.
Forward-looking statements involve known and unknown risks and
uncertainties that may cause our actual results in future periods to differ
materially from what is currently anticipated. We make cautionary statements
throughout this prospectus, including under "Risk Factors." You should read
these cautionary statements as being applicable to all related forward-looking
statements wherever they appear in this prospectus, the materials referred to in
this prospectus, the materials incorporated by reference into this prospectus
and our press releases.
We cannot guarantee our future results, levels of activity, performance or
achievements. Neither we nor any other person assumes responsibility for the
accuracy and completeness of these statements.
We are under no duty to update any of the forward-looking statements after
the date of this prospectus.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
Common Stock being sold by the selling stockholders pursuant to this prospectus.
SELLING STOCKHOLDERS
We are registering all 450,460 shares of Common Stock covered by this
prospectus on behalf of the selling stockholders named in the table below. We
issued all of the shares to the selling stockholders in a private placement
transaction at prices per share ranging from approximately $4.43 to $4.51.
The following table sets forth as of May 17, 2000, the name of each of the
selling stockholders, the number of shares owned by each of the selling
stockholders, the number of shares of our Common Stock owned by each of the
selling stockholders as of the number of shares that may be offered under this
prospectus and the number of shares of our Common Stock owned by each of the
selling stockholders after this offering is completed. Except as described
below, each selling stockholder has sole voting and investment power with
respect to the shares of Common Stock set forth in the table. The table has been
prepared on the basis of the information furnished to us by or on behalf of each
of the selling stockholders. As of May 5, 2000, there were approximately
6,117,459 shares of our Common Stock were outstanding.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF NUMBER OF SHARES OF
NUMBER OF SHARES OF COMMON STOCK BEING COMMON STOCK
COMMON STOCK BENEFICIALLY OFFERED BY THIS BENEFICIALLY OWNED
SELLING STOCKHOLDERS OWNED BEFORE THE OFFERING PROSPECTUS (1) AFTER THE OFFERING (2)
-------------------- ------------------------- ------------------- ----------------------
<S> <C> <C> <C>
Tom Courts 116,344 116,344 0
Paul Yahnke 38,781 38,781 0
Gary Cheng 77,562 77,562 0
Howard Yen 77,562 77,562 0
Boniface O. Onubah 25,493 25,493 0
Tony Yollin 25,493 25,493 0
Keri Consulting Limited 89,225 89,225 0
</TABLE>
-10-
<PAGE> 13
None of the selling stockholders has, or has had, any position, office or
other material relationship with us within the past three years, other than as a
result of the ownership of the shares. We do not know how long the selling
stockholders will hold the shares before selling them and we currently have no
agreements, arrangements or understandings with any of the selling stockholders
regarding the sale of any of the shares. The selling stockholders named above
may have sold, transferred or otherwise disposed of all or a portion of such
shares of Common Stock since May 17, 2000, in transactions exempt from
registration under the Securities Act. Generally, only selling stockholders
identified in the foregoing table who beneficially own the shares of Common
Stock set forth opposite their respective names may sell such offered shares
pursuant to this Registration Statement of which this prospectus forms a part.
We may from time to time include additional selling stockholders in supplements
to this prospectus. The shares offered by this prospectus may be offered from
time to time by the selling stockholders named above.
(1) This registration statement shall also cover any additional shares of Common
Stack which become issuable in connection with the shares registered for sale
hereby as a result of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which results
in an increase in the number of the Company's outstanding shares of Common
Stack.
(2) Assumes the sale of all shares offered hereby and no other purchases or
sales of the Company's common stock.
PLAN OF DISTRIBUTION
The shares of Common Stock offered hereby may be sold from time to time by
the selling stockholders or by their pledgees, donees, distributees, transferees
or other successors in interest. The selling stockholders will act independently
of us in making decisions regarding the timing, manner and size of each sale.
The sales may be made on the Nasdaq National Market or such other market on
which our Common Stock may from time to time be trading, at prices and at terms
then prevailing or at prices related to the then current market price, or in
negotiated transactions. The selling stockholders may effect such transactions
by selling the shares to or through broker-dealers. The shares may be sold by
one or more of, or a combination of, a block trade in which the broker-dealer
will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction, purchases by a
broker-dealer as principal and resale by such broker-dealer for its account
pursuant to this prospectus, an exchange distribution in accordance with the
rules of such exchange, ordinary brokerage transactions and transactions in
which the broker solicits purchasers and in privately negotiated transactions.
In effecting sales, broker-dealers engaged by the selling stockholders may
arrange for other broker-dealers to participate in the resales.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with selling stockholders. The
selling stockholders also may sell shares short and redeliver the shares to
close out such short positions. The selling stockholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this prospectus. The selling stockholders also
may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
shares so loaned, or upon a default the broker-dealer may sell the pledged
shares pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe material arrangements regarding the plan of
distribution.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular
-11-
<PAGE> 14
broker-dealer might be in excess of customary commissions and will be in amounts
to be negotiated in connection with the sale. Broker-dealers or agents and any
other participating broker-dealers or the selling stockholders may be deemed to
be "underwriters" within the meaning of Section 2(11) of the Securities Act in
connection with sales of the shares. Accordingly, any such commission, discount
or concession received by them and any profit on the resale of the shares
purchased by them may be deemed to be underwriting discounts or commissions
under the Securities Act. Because selling stockholders may be deemed to be
"underwriters" within the meaning of Section 2(l1) of the Securities Act, the
selling stockholders will be subject to the prospectus delivery requirements of
the Securities Act. In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 promulgated under the Securities Act may
be sold under Rule 144 rather than pursuant to this prospectus. The selling
stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding
the sale of their securities. There is no underwriter or coordinating broker
acting in connection with the proposed sale of shares by the selling
stockholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our Common Stack for a period of two
business days prior to the commencement of such distribution. In addition, each
selling stockholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our Common Stack by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need to deliver copies of this prospectus to purchasers at or prior to the
time of any sale of the shares.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. The selling stockholders
have agreed to indemnify certain persons, including broker-dealers and agents,
against certain liabilities in connection with the offering of the shares,
including liabilities arising under the Securities Act.
LEGAL MATTERS
For purposes of this prospectus, Stroock & Stroock & Lavan LLP, is giving
its opinion as to the validity of the issuance of the shares of Common Stock.
Members of such firm do not own any shares of our Common Stock.
-12-
<PAGE> 15
EXPERTS
Grant Thornton LLP, independent auditors, have audited our consolidated
financial statements included in our annual report on Form 10-K for the year
ended June 30, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial reports are incorporated by reference in reliance on Grant Thornton
LLP's report, given on their authority as experts in accounting and auditing.
-13-
<PAGE> 16
<TABLE>
<S> <C>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO Prospectus
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED
IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER
THAN THE COMMON STOCK TO WHICH IT RELATES, OR AN OFFER IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AT ANY TIME AFTER THE DATE HEREOF.
450,460 Shares
VENTURE CATALYST
INCORPORATED
COMMON STOCK
__________, 2000
</TABLE>
-14-
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses, other than underwriting
documents and commissions, payable by the Registrant in connection with the sale
of the Common Stack being registered. All the amounts shown are estimates,
except for the registration fee.
SEC Registration Fee $ 500
Blue Sky Fees and expenses 100
Printing and engraving expenses 5,000
Legal fees and expenses 1,000
Accounting fees and expenses 1,000
Transfer Agent and Registrar Fees 1,000
Miscellaneous expenses 1,400
----------
TOTAL $ 10,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 16-10a-902 of the Utah Revised Business Corporation Act ("URBCA")
provides that a corporation may indemnify an individual, who was made a party to
a proceeding because such individual was a director of the corporation, against
liability incurred in such proceeding if the director acted in good faith,
reasonably believed his or her conduct was in, or not opposed to, the
corporation's best interests and in the case of any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful; provided that, the
corporation may not indemnify a director in connection with any other proceeding
where the director was found liable or where the director was charged with
deriving an improper personal benefit and was found liable on such basis.
Section 16-10a-903 of URBCA provides for mandatory indemnification for directors
in certain limited circumstances, unless otherwise prohibited by a corporation's
articles of incorporation. Section 16-10a-904 of URBCA authorizes a corporation
to pay for or reimburse directors for certain expenses relating to a proceeding
in limited circumstances. Section 16-10a-905 of URBCA allows a director to apply
for a court-ordered indemnification regarding a proceeding in limited
circumstances. Section 16-10a-906 of URBCA specifies the instances and
procedures when a director can be indemnified by a corporation or when a
corporation may advance fees to a director relating to a proceeding. Section
16-10a-907 of URBCA provides that, unless a corporation's articles of
incorporation states otherwise, an officer of the corporation is entitled to
mandatory indemnification under Section 16-10a-903 and court-ordered
indemnification under Section 16-10a-905 to the same extent as a director; in
addition, a corporation may indemnify and advance expenses for an officer,
employee, fiduciary or agent of the corporation to the same extent as a
director; also, unless against public policy or inconsistent with the
corporation's articles of incorporation, bylaws, general or specific action of
the board of directors of the corporation or contract, a corporation may
indemnify and advance expenses for an officer, employee, fiduciary or agent of
the corporation to a greater extent than for a director. Section 16-10a-908 of
URBCA authorizes a corporation to purchase and maintain liability insurance for
a director, officer, employee, fiduciary or agent of a corporation.
Article X of the Amended and Restated Bylaws of the Company (the "Bylaws")
permits indemnification of directors, officers, employees, fiduciaries and
agents of the Company to the maximum extent permitted by Utah law. In addition,
in the event that a court of competent jurisdictions invalidates Article X of
the Bylaws or any portion thereof, the Company shall indemnify each officer or
director of the Company for expenses relating to the settlement of any action,
suit or proceeding to the full extent permitted by any portion of Article X that
has not been invalidated by such court or by another applicable law.
II-1
<PAGE> 18
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- -----------
5 Opinion of Stroock & Stroock & Lavan LLP.
23.1 Consent of Grant Thorton LLP, Independent Accounts.
23.2 Consent of Stroock & Stroock & Lavan LLP (included in Exhibit 5).
24 Power of Attorney (previously filed as part of Venture Catalyst
Incorporated's Registration Statement on Form S-3 (File No.
333-37450) filed with the Commission on May 19, 2000)
ITEM 17. UNDERTAKINGS.
(a) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
(d) 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;
II-2
<PAGE> 19
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.
(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.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California on the
21st day of June, 2000.
VENTURE CATALYST INCORPORATED
(Registrant)
By: /s/ L. Donald Speer, II
-------------------------------------------------
L. Donald Speer, II
Chairman of the Board and Chief Executive Officer
II-4
<PAGE> 21
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board and June 21, 2000
------------------------------------ Chief Executive Officer
L. Donald Speer, II (Principal Executive Officer)
* Vice President, Chief Financial Officer and June 21, 2000
------------------------------------ Treasurer
Kevin McIntosh (Principal Accounting Officer)
* Vice President, Corporate Development, June 21, 2000
------------------------------------ and Director
Stephen M. Dirks
* Executive Vice President, Corporate June 21, 2000
------------------------------------ Development, and Director
Andrew B. Laub
Vice President, Governmental Relations and
------------------------------------ Director
Jana McKeag
* President, Chief Operating Officer and June 21, 2000
------------------------------------ Director
Sanjay Sabnani
* Executive Vice President, General Counsel, June 21, 2000
------------------------------------ Secretary and Director
Glenn D. Smith
Director
------------------------------------
Charles Theodore ("Ted") Owen
Director
------------------------------------
Charles Reibel
Director
------------------------------------
Cornelius E. ("Neil") Smyth
By: /s/ Glenn D. Smith*
---------------------------------
Glenn D. Smith
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 22
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
---------- -----------
5 Opinion of Stroock & Stroock & Lavan LLP.
23.1 Consent of Grant Thorton LLP, Independent Accounts.
23.2 Consent of Stroock & Stroock & Lavan LLP.
III
