<PAGE>
As filed with the Securities and Exchange Commission on February 25, 2000
Registration No. ___-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
Pinnacle Entertainment, Inc.(formerly known as Hollywood Park, Inc.)
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
Delaware 95-3667491
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
</TABLE>
330 North Brand Avenue
Glendale, CA 91203
(818) 662-5900
Hollywood Park, Inc. Executive Deferred Compensation Plan
(Full title of the Plan)
<TABLE>
<C> <S><C>
LOREN S. OSTROW, ESQ. Copy to:
Pinnacle Entertainment, Inc. ALVIN G. SEGEL, ESQ.
330 North Brand Avenue ASHOK MUKHEY, ESQ.
Glendale, CA 91203 Irell & Manella LLP
(818) 662-5900 1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
(Name, address including zip code, and telephone number, including (310) 277-1010
area code, of registrants' agent for service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount to be Maximum Maximum
Title of Registered Offering Price Aggregate Amount of
Securities to be Registered Per Share (1) Offering Price (2) Registration Fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations $15,000,000 100% $15,000,000 $3,960
==============================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of Pinnacle
Entertainment, Inc. to pay deferred compensation in the future in accordance
with the terms of the Hollywood Park, Inc. Executive Deferred Compensation Plan.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of calculating the
registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Information required by Item 1 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.
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.
(formerly known as Hollywood Park 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 Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(2) the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999;
(3) the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999;
(4) the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999;
(5) the Registrant's Current Report on Form 8-K, filed September 29, 1999;
and
(6) the Registrant's Registration Statement on Form S-8, filed on August
31, 1999.
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.
Under the Hollywood Park Inc. Executive Deferred Compensation Plan (the
"Deferred Compensation Plan"), the Registrant will provide a select group of
management and highly
-2-
<PAGE>
compensated employees and officers (the "Deferred Compensation Employees") the
opportunity to enter into agreements for the deferral of a specified percentage
of their cash compensation. The obligations of the Registrant under such
agreements (the "Deferred Compensation Obligations") will be unsecured general
obligations of the Registrant to pay the deferred compensation in the future in
accordance with the terms of the Deferred Compensation Plan and will rank pari
passu with other unsecured and unsubordinated indebtedness of the Registrant
from time to time outstanding.
To participate in the Deferred Compensation Plan in a particular year, the
Deferred Compensation Employee must enroll in the Deferred Compensation Plan and
make an election to defer the receipt of amounts payable in the form of base
salary or bonus during any plan year. The amount of compensation to be deferred
by each participating employee ("Deferred Compensation Participant") will be
determined in accordance with the Deferred Compensation Plan based on election
by the employee. Deferred Compensation Participants may elect to defer their
salary or bonus, so long as such deferral amounts to a minimum of at least Three
Thousand Dollars ($3,000) annually.
The Deferred Compensation Obligations will be indexed to one or more
Hypothetical Investments, which will be individually chosen by each Deferred
Compensation Participant from a list of Hypothetical Investments. Each Deferred
Compensation Participant's deferred compensation account will be adjusted to
reflect the investment performance of the selected Hypothetical Investments,
including any appreciation or depreciation. Gains or losses are posted to the
Deferred Compensation Participant's account periodically. The investment
accounts are for bookkeeping purposes only and the Registrant is not obligated
to invest the deferred compensation in the investment accounts specified by the
Deferred Compensation Participants.
A committee (the "Deferred Compensation Plan Committee") consisting of the
Board of Directors of the Registrant or such committee as the Board shall
appoint, shall be charged with the general administration of the Deferred
Compensation Plan and the Deferred Compensation Obligations. The Deferred
Compensation Obligations are not convertible into another security of the
Registrant. The Deferred Compensation Obligations will not have the benefit of
a negative pledge or any other affirmative or negative covenant on the part of
the Registrant. The Registrant shall establish a trust, which shall be a
grantor trust for federal income tax purposes and which shall not cause the
Deferred Compensation Plan to be "funded" under the Employee Retirement Income
Security Act of 1974, to assist the Registrant in meeting the Deferred
Compensation Obligations. The assets of the trust will be available to satisfy
the claims of the Registrant's general creditors in the event of the
Registrant's insolvency.
The Deferred Compensation Obligations will be distributed by the Registrant
in accordance with the terms of the Deferred Compensation Plan and upon, but not
limited to, the following circumstances: upon termination of employment,
retirement, death or long term disability, termination of the Deferred
Compensation Plan, or upon the occurrence of certain hardship circumstances as
determined by the Deferred Compensation Plan Committee of the Registrant. Also,
when a Deferred Compensation Participant elects to defer his or her base salary
or bonus, he or she may elect that such deferred amounts will be distributed on
an "Interim Distribution Date" three or more years after the end of the year to
which the election relates. A Deferred Compensation Participant may also elect
at any time to receive a distribution of 90% of the balance of his or her
deferred compensation account, provided that he or she will thereupon forfeit
the remaining 10% of the balance of his or her deferred compensation account and
will be suspended from participating in the Deferred Compensation Plan for
the rest of the year and for the following year.
A Deferred Compensation Participant's right or the right of any other
person to the Deferred Compensation Obligations cannot be assigned, alienated,
sold, garnished, transferred, pledged or encumbered.
Item 5. Interests of Named Experts and Counsel.
-3-
<PAGE>
None.
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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
-4-
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 Hollywood Park, Inc. Executive Deferred Compensation Plan
5.1 Legal Opinion of Irell & Manella LLP
23.1 Consent of Irell & Manella LLP (included in legal opinion
filed as Exhibit 5.1)
23.2 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
-5-
<PAGE>
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.
(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-
<PAGE>
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 24th day of
February 2000.
Pinnacle Entertainment, Inc.
By: /s/ Loren S. Ostrow
-----------------------------------
Loren S. Ostrow
Secretary
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R.D. Hubbard
- --------------------- Chairman of the Board, Chief February 24, 2000
R.D. Hubbard Executive Officer and Director
(Principal Executive Officer)
/s/ Paul R. Alanis President and Chief Operating Officer February 24, 2000
- ---------------------
Paul R. Alanis
/s/ Bruce C. Hinckley Senior Vice President, Treasurer February 24, 2000
- --------------------- and Chief Financial Officer
Bruce C. Hinckley (Principal Financial and
Accounting Officer)
</TABLE>
-7-
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Robert T. Manfuso Director February 15, 2000
- ----------------------
Robert T. Manfuso
/s/ James L. Martineau Director February 17, 2000
- ----------------------
James L. Martineau
/s/ Gary G. Miller Director February 14, 2000
- ----------------------
Gary G. Miller
/s/ Michael Ornest Director February 14, 2000
- ----------------------
Michael Ornest
/s/ Timothy J. Parrott Director February 24, 2000
- ----------------------
Timothy J. Parrott
/s/ Lynn P. Reitnouer Director February 14, 2000
- ----------------------
Lynn P. Reitnouer
/s/ Herman Sarkowsky Director February 14, 2000
- ----------------------
Herman Sarkowsky
/s/ Marlin Torguson Director February 15, 2000
- ----------------------
Marlin Torguson
</TABLE>
-8-
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description
- ------ -----------
4.1 Hollywood Park, Inc. Executive Deferred Compensation Plan
5.1 Legal Opinion of Irell & Manella LLP
23.1 Consent of Irell & Manella LLP (included in legal opinion
filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on signature pages filed herewith)
-9-
<PAGE>
Exhibit 4.1
HOLLYWOOD PARK, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective January 1, 2000
Purpose
This Plan is maintained for the purpose of providing Participants an
opportunity to defer compensation that would otherwise be currently payable to
such Participants. This Plan is intended to be an unfunded plan maintained
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, as amended.
ARTICLE 1
Definitions
-----------
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the meanings indicated:
1.1 "Account Balance" shall mean as of any given date called for under the
Plan the balance of the Participant's Deferral Contribution Account.
1.2 "Base Annual Salary" shall mean the base annual compensation payable
to a Participant by an Employer for services rendered during a Plan Year, (i)
excluding Bonus, director fees or other additional incentives or awards payable
to the Participant, but (ii) before reduction for any Elective Deductions.
1.3 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated by the Participant in accordance with Article 11, to
receive the Participant's undistributed Account Balance, in the event of the
Participant's death.
1.4 "Beneficiary Designation Form" shall mean the document which shall be
used by the Participant to designate his Beneficiary for the Plan.
1.5 "Benefit Distribution Date" shall mean the date distribution of the
Participant's Account Balance is triggered and it shall be deemed to occur as of
the date on
<PAGE>
which the Participant's employment terminates for any reason whatsoever,
including but not limited to death, Disability or any other reason.
Notwithstanding the language of the prior sentence, if the Participant's
employment terminates due to his Retirement, his Benefit Distribution Date shall
be deemed to occur as of the January 1 following such Participant's Retirement.
In the event the Benefit Distribution Date is triggered due to: (i) a
Termination of Employment as such term is defined in Section 1.36, the
Participant's Account Balance shall be payable pursuant to Article 6; (ii) a
Retirement as such term is defined in Section 1.31, the Participant's Account
Balance shall be payable pursuant to Article 7; (iii) a pre-retirement death,
the Participant's Account Balance shall be payable pursuant to Article 8; and
(iv) a Disability as such term is defined in Section 1.16, the Participant's
Account Balance shall be payable pursuant to Article 9.
1.6 "Board" shall mean the board of directors of the Employer.
1.7 "Bonus" shall mean the amounts earned by a Participant for services
rendered during a Plan Year under any bonus or incentive plan or arrangement
sponsored by an Employer, before reduction for any Elective Deductions, but
excluding commissions, stock-related awards and other non-monetary incentives.
1.8 "Change in Control" shall mean the earliest to occur of the following
events:
(a) the consummation of any transaction or series of transactions as a
result of which any "Person" (as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) other than an "Excluded Person" (as hereinafter defined) has or obtains
ownership or control, directly or indirectly, of fifty percent (50%) or more of
the combined voting power of all securities of the Employer or any successor or
surviving corporation of any merger, consolidation or reorganization involving
the Employer (the "Voting Securities"). The term "Excluded Person" means any one
or more of the following: (i) the Employer or any majority-owned subsidiary of
the Employer, (ii) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Employer or (B) any majority-owned subsidiary of the
Employer, (iii) any Person who as of the initial effective date of this Plan
owned or controlled, directly or indirectly, ten percent (10%) or more of the
then outstanding Voting Securities, or any individual, entity or group that was
part of such a Person;
(b) A merger, consolidation or reorganization involving the Employer as
a result of which the holders of Voting Securities immediately before such
merger, consolidation or reorganization do not immediately following such
merger, consolidation or reorganization own or control, directly or indirectly,
at least fifty percent (50%) of the Voting Securities in substantially the same
proportion as their ownership or control of the Voting Securities immediately
before such merger, consolidation or reorganization; provided, however, that no
such merger, consolidation or reorganization shall constitute a Change of
Control if Persons who were Excluded Persons immediately before such merger,
consolidation or reorganization own or control, directly or indirectly, at least
fifty percent (50%) of the Voting Securities after such merger, consolidation or
reorganization; or
(c) The individuals who, as of the date hereof, are members of the
Board of Directors of the Employer (the "Existing Directors"), cease, for any
reason, to constitute
-2-
<PAGE>
more than 50% of the number of authorized directors of the Employer as
determined in the manner prescribed in the Employer's Certificate of
Incorporation and Bylaws, provided, however ,that if the election, or nomination
for election, by the Employer's stockholders of any new director was approved by
a vote of at least 50% of the Existing Directors, such new director will be
considered an Existing Director; provided further however , that no individual
will be considered an Existing Director if such individual initially assumed
office as a result of either an actual or threatened "Election Contest' (as
described in Rule 14a-II promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies by or on behalf of anyone other than the
Board (a "Proxy Contest"), including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest.
(d) The sale or other disposition of all or substantially all of the
assets of the Employer to any Person (other than a transfer to a majority-owned
subsidiary of the Employer, to Excluded Persons, or to any Person majority-owned
or controlled by Excluded Persons) in a single transaction or in a series of
related transactions.
1.9 "Claimant" shall mean the person or persons described in Section 15.1
who apply for benefits or amounts that may be payable under the Plan.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations and other authority issued thereunder by the appropriate
governmental authority. References to the Code shall include references to any
successor section or provision of the Code.
1.11 "Committee" shall mean the committee described in Article 13 which
shall administer the Plan.
1.12 "Contributions" shall collectively refer to any and all Deferrals as
such terms have been defined herein.
1.13 "Deferral Contribution" shall mean the aggregate amount of Base
Annual Salary or Bonus deferred by a Participant during a given Plan Year in
accordance with the terms of the Plan and the Participant's Election Form and
"credited" to the Participant's Deferral Contribution Account. Deferral
Contributions shall be deemed to be made to the Plan by the Participant on the
date the Participant would have received such compensation had it not been
deferred pursuant to the Plan.
1.14 "Deferral Contribution Account" shall mean a Participant's aggregate
Deferral Contributions, as well as any appreciation (or depreciation)
specifically attributable to such Deferral Contributions due to Investment
Adjustments, reduced to reflect all prior distributions and withdrawals. The
Deferral Contribution Account shall be utilized solely as a device for the
measurement of amounts to be paid to the Participant under the Plan. The
Deferral Contribution Account shall not constitute or be treated as an escrow,
trust fund, or any other type of funded account for Code or ERISA purposes and,
moreover, contingent amounts credited thereto shall not be considered "plan
assets" for ERISA purposes. The Deferral Contribution Account merely provides a
record of the bookkeeping entries relating to the contingent benefits that the
Employer intends to provide Participant and shall thus reflect a mere unsecured
promise to pay such amounts in the future.
-3-
<PAGE>
1.15 "Disability" shall mean a period of disability during which a
Participant qualifies for total permanent disability benefits under his
Employer's long-term disability plan, or, if a Participant does not participate
in such a plan, a period of disability during which the Participant would have
qualified for total permanent disability benefits had the Participant been a
participant in such a plan, as determined in the sole discretion of the
Committee. If the Participant's Employer does not sponsor such a plan, or
discontinues sponsorship of such a plan, Disability shall be determined by the
Committee in its sole discretion.
1.16 "Disability Benefit" shall mean the benefit set forth in Article 9.
1.17 "Election Form" shall mean the document required by the Committee to
be submitted by a Participant, on a timely basis, which specifies (i) the amount
of Base Annual Salary and/or Bonus the Participant has elected to defer with
respect to a given Plan Year and (ii) the portion (if any) of Deferral
Contributions which shall be distributable upon an Interim Distribution Date
rather than the Benefit Distribution Date. For all Plan Years (excluding any
partial Plan Year in which the Plan is implemented), the Election Form must be
submitted at least thirty (30) days prior to January 1, the effective date of
the Election Form, in order to be deemed timely. An Election Form shall only be
effective with respect to Base Annual Salary and/or Bonus which shall be earned
after the effective date of the Election Form. In the event a Participant fails
to submit an Election Form with respect to a Plan Year or fails to submit such
form on a timely basis, Participant shall not make Deferral Contributions during
the Plan Year nor be entitled to Matching Contributions or Discretionary
Contributions attributable to the Plan Year.
1.18 "Elective Deductions" shall mean those deductions from a Participant's
Base Annual Salary or Bonus for amounts voluntarily deferred or contributed by
the Participant pursuant to any qualified or non-qualified deferred compensation
plan, including, without limitation, amounts deferred pursuant to Code Section
125, 402(e)(3) and 402(h), provided, however, that all such amounts would have
been payable to the Participant in cash had there been no such deferral.
1.19 "Employer" or "Employers" shall mean Hollywood Park, Inc., a Delaware
corporation, and any of its adopting subsidiaries (now in existence or hereafter
formed or acquired) and any successor entity.
1.20 "Enrollment Forms" shall mean the Participation Agreement, the initial
Election Form, the Retirement Benefit Distribution Form and any other forms or
documents which may be required of a Participant by the Committee, in its sole
discretion, prior to and as a condition of participating in the Plan.
1.21 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the regulations and other authority issued thereunder by
the appropriate governmental authority. References herein to any section of
ERISA shall include references to any successor section or provision of ERISA.
1.22 "Financial Emergency" shall mean an unanticipated emergency and severe
financial hardship to the Participant resulting from a sudden and unexpected
illness or
-4-
<PAGE>
accident of the Participant or a dependent of the Participant, a loss of the
Participant's property due to casualty, or such other extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant. The circumstances that will constitute an unforeseeable
emergency will be determined by the Committee in its sole discretion and will
depend upon the facts of each case, however, a Financial Emergency shall not be
deemed to exist to the extent that such hardship is or may be relieved
(i) through reimbursement or compensation by insurance or
otherwise,
(ii) by liquidation or the Participant's assets, to the extent
the liquidation of such assets would not itself cause severe financial hardship,
or
(iii) by cessation of Deferral Contributions under the Plan.
By way of example, the need to send a Participant's child to college or the
desire to purchase a home would not be considered a Financial Emergency. As a
further example, a Financial Emergency that may be relieved by cessation of
Deferral Contributions will be considered to be a Financial Emergency until such
time as it is relieved by cessation of Deferral Contributions or by other means.
1.23 "Hypothetical Investment" shall mean an investment fund or benchmark
made available to Participants by the Committee for purposes of valuing amounts
contributed to the Plan.
1.24 "Interim Distribution Date" shall mean the first day of any calendar
year, selected by the Participant, upon which the designated portion of Deferral
(as well as any appreciation or depreciation of such amounts due to Investment
Adjustments) attributable to a given Plan Year shall be distributed in a lump
sum payment. Notwithstanding the prior sentence, in no event shall a Participant
be permitted to select a date which is less than three (3) years from the end of
the Plan Year to which the Election Form relates.
1.25 "Investment Adjustment(s)" shall mean any appreciation credited to (as
income or gains) or depreciation deducted from (as losses) a Participant's
Deferral Contribution Account in accordance with such Participant's selection of
Hypothetical Investments in the manner determined by the Committee.
1.26 "Investment Allocation Form" (i) shall apply with respect to those
Deferral Contributions made to the Plan after the effective date of the
Investment Allocation Form but prior to the timely filing of a subsequent
Investment Allocation Form and (ii) shall determine the manner in which such
Deferral Contributions shall be initially allocated by the Participant among the
various Hypothetical Investments within the Plan. A Participant may make
changes to his or her investment allocation choices in accordance with the
guidelines, timetable and manner set forth by the Committee.
1.27 "Participant" shall mean any employee (i) who is selected to
participate in the Plan in accordance with Section 2.1, (ii) who elects to
participate in the Plan, (iii) who signs the applicable Enrollment Forms (and
other forms required by the Committee) on a timely basis, and (iv) whose signed
Enrollment Forms (and other required forms) are accepted by the Committee.
-5-
<PAGE>
1.28 "Participation Agreement" shall mean the separate written agreement
entered into by and between the Employer and the Participant, which shall
indicate the Participant's intent to defer compensation subject to the terms of
the Plan and the Participation Agreement itself.
1.29 "Plan" shall mean the Hollywood Park, Inc. Executive Deferred
Compensation Plan, which shall be evidenced by this instrument, each
Participation Agreement and by each Enrollment Form, as they may be amended from
time to time.
1.30 "Plan Year" shall mean the initial period beginning on January 1, 2000
and ending on December 31, 2000. Thereafter, the term "Plan Year" shall mean the
period beginning on January 1 of each year and ending December 31. Accordingly,
Plan quarters shall commence on January 1, April 1, July 1 and October 1 of each
year .
1.31 "Retirement," "Retires" or "Retired" shall mean, with respect to an
Employee, severance from employment for any reason other than an authorized
leave of absence, Disability, death or for cause termination on or after the
earlier of the attainment of age fifty-five (55) with five (5) Years of Service
or reaching age 65.
1.32 "Retirement Benefit" shall mean the benefit set forth in Article 7.
1.33 "Retirement Benefit Distribution Form" shall mean the document,
executed by the Participant, which specifies the manner in which the Participant
shall have the balance of his accounts distributed in the event his Benefit
Distribution Date is triggered due to such Participant's Retirement from the
Employer. The Participant shall elect to receive the Retirement Benefit in a
lump sum or in annual payments over a period of 5, 10 or 15 years, except that
if the Participant's Account balance is less than $10,000 on his employment
termination date, his entire Account balance shall be paid in the form of a lump
sum payment. The Retirement Benefit Distribution Form must be provided to the
Committee along with all other Enrollment Forms, pursuant to Article 2, prior to
participating in the Plan. Notwithstanding the prior language of this Section,
the Participant may submit a subsequent Retirement Benefit Distribution Form in
order to change the form of distribution, or to delay commencement of the
payment of the Retirement Benefit until the Participant's 75th birthday;
provided however, such form shall be effective only if (i) it is submitted at
least thirteen (13) months prior the Participant's actual Benefit Distribution
Date and (ii) it is approved by the Committee, in its sole discretion.
1.34 "Subsidiary" means any corporation more than 50 percent of the voting
stock of which is directly or indirectly owned by the Employer. The Employer
and its Subsidiaries that adopt the Plan are referred to herein collectively as
the "Employers" and individually as an "Employer".
1.35 "Termination Benefit" shall mean the benefit set forth in Article 6.
1.36 "Termination of Employment" shall mean the voluntary or involuntary
severing of employment, with any and all Employers, for any reason other than
Retirement, Disability, or death.
-6-
<PAGE>
1.37 "Trust" shall mean a grantor trust of the type commonly referred to as
"rabbi trust" created to "informally fund" contingent benefits payable under the
Plan.
1.38 "Years of Service" shall mean the total number of twelve (12) month
periods during which a Participant has been continuously employed by one or more
Employers.
ARTICLE 2
Eligibility, Selection, Enrollment
----------------------------------
2.1 Eligibility, Selection by Committee. Those employees who are (i)
-----------------------------------
determined by the Employer to be includable in a select group of management or
highly compensated employees of the Employer, (ii) specifically chosen by the
Employer to participate in the Plan, and (iii) approved for such participation
by the Committee, in its sole discretion, shall be eligible to defer
compensation into the Plan subject to the enrollment requirements described in
Section 2.2.
2.2 Enrollment Requirements. Each employee deemed eligible to defer
-----------------------
compensation into the Plan pursuant to Section 2.1, shall, as a condition to
participating in the Plan, complete and return to the Committee all of the
required Enrollment Forms, on a timely basis. In addition, the Committee shall
in its sole discretion, establish such other enrollment requirements necessary
for continued participation in the Plan.
2.3 Commencement of Participation. Provided a Participant has met all
-----------------------------
enrollment requirements set forth in this Plan and required by the Committee,
including returning the Enrollment Forms and other required documents to the
Committee within the specified time period, the Participant's participation
shall commence as of the date established by the Committee in its sole
discretion. If a Participant fails to meet all such requirements within the
specified time period with respect to any Plan Year, the Participant shall not
be eligible to defer compensation during that Plan Year.
ARTICLE 3
Deferral Contributions, Matching Contributions, Discretionary Contributions
---------------------------------------------------------------------------
Investment Adjustments, Taxes and Vesting
-----------------------------------------
3.1 Deferral Contributions.
----------------------
(a) Election to Defer. A Participant may make an election to defer
-----------------
the receipt of amounts payable to the Participant, in the form of Base Annual
Salary or Bonus, during any Plan Year. The Participant's intent to defer shall
be evidenced by a Participation Agreement and annual Election Form, both
completed and submitted to the Committee in accordance with such procedures and
time frames as may be established by the Committee in its sole discretion, but
in the every case in compliance with the requirement of Section 1.17. Amounts
deferred by a Participant with respect to a given Plan Year shall be referred to
collectively as a Deferral Contribution and shall be credited to a Deferral
Contribution Account established in the name of the Participant.
-7-
<PAGE>
(b) Components of Deferral Contributions.
------------------------------------
(i) Base Annual Salary. A Participant may designate a fixed
------------------
dollar amount to be deducted from his Base Annual Salary. Such amount shall be
withheld, in substantially equal installments, from each regularly
scheduled payment of Base Annual Salary.
(ii) Bonus. A Participant may designate a fixed dollar amount
-----
or a percentage to be deducted from his Bonus. If a fixed dollar amount is
designated by the Participant to be deducted from any Bonus payment and such
fixed dollar amount exceeds the Bonus actually payable to the Participant, the
entire amount of such Bonus shall be withheld.
(c) Minimum Deferral.
----------------
(i) Minimum. During any Plan Year the Committee may permit a
-------
Participant to elect to defer, pursuant to an Election Form, his Salary and any
applicable Bonus (whether an annual or monthly bonus) provided that the total
deferral in the aggregate of his Salary and Bonus amounts to a minimum of at
least Three Thousand Dollars ($3,000) in any given Plan year.
If an Election Form is submitted which would yield less than the
stated minimum amounts, the amount deferred shall be zero.
(ii) Short Plan Year. If an Employee first becomes a
---------------
Participant after the first day of any Plan Year, the minimum deferral of each
of the Participant's Base Annual Salary or Bonus shall be an amount equal to the
minimum set forth above, multiplied by a fraction, the numerator of which is the
number of complete months remaining in the Plan Year and the denominator of
which is 12:
(d) Maximum Deferral. For any given Plan Year the Committee may
----------------
permit a Participant to defer, pursuant to an Election Form, one or more of the
following forms of compensation up to the following maximum percentages:
Maximum
Deferral Percentage
-------- ----------
Base Annual Salary 75%
Bonus 90%
3.2 Selection of Hypothetical Investments. The Participant shall,
-------------------------------------
via his initial Investment Allocation Form(s) and through whatever other means
the Committee may determine, as more fully described in Section 1.26, select one
or more Hypothetical Investments among which his various contributions shall be
distributed. At the beginning of each Plan Year, the Committee shall provide
the Participant with a list of Hypothetical Investments available. From time to
time, in the sole discretion of the Committee, the Hypothetical Investments
available within the Plan may be revised. All Hypothetical Investment
selections must be denominated in whole percentages unless the Committee
determines that lower increments are acceptable. A Participant may make changes
in his
-8-
<PAGE>
selected Hypothetical Investments on a basis and in a manner set forth by
the Committee, as described in and subject to the language of Section 1.26.
3.3 Adjustment of Participant Accounts. While a Participant's accounts
----------------------------------
do not represent the Participant's ownership of, or any ownership interest in,
any particular assets, the Participant's accounts shall be adjusted in
accordance with the Hypothetical Investment(s) chosen by the Participant on his
(i) initial Investment Allocation Form or (ii) in whatever other means the
Committee provides for a participant to make investment reallocation choices,
subject to the conditions and procedures set forth herein or established by the
Committee from time to time. Any cash earnings generated under an Hypothetical
Investment (such as interest and cash dividends and distributions) shall, at the
Committee's sole discretion, either be deemed to be reinvested in that
Hypothetical Investment or reinvested in one or more other Hypothetical
Investment(s) designated by the Committee. All notional acquisitions and
dispositions of Hypothetical Investments which occur within a Participant's
accounts, pursuant to the terms of the Plan, shall be deemed to occur at such
times as the Committee shall determine to be administratively feasible in its
sole discretion and the Participant's accounts shall be adjusted accordingly.
Accordingly, if a distribution or re-allocation must occur pursuant to the terms
of the Plan and all or some portion of the Account Balance must be valued in
connection such distribution or re-allocation (to reflect Investment
Adjustments), the Committee may in its sole discretion, unless otherwise
provided for in the Plan, select a date or dates which shall be used for
valuation purposes. Notwithstanding anything to the contrary, any Investment
Adjustments made to any Participants' accounts following a Change in Control
shall be made in a manner no less favorable to Participants than the practices
and procedures employed under the Plan, or as otherwise in effect, as of the
date of the Change in Control.
3.4 Withholding of Taxes.
--------------------
(a) Annual Withholding from Compensation. For any Plan Year in
------------------------------------
which Deferral Contributions are made to or the Plan (as applicable), the
Employer shall withhold the Participant's share of FICA and other employment
taxes from the portion of the Participant's Base Annual Salary and/or Bonus or
other compensation not deferred. If deemed appropriate by the Committee, the
Participant's Election Form may be reduced in certain instances where necessary
to facilitate compliance with applicable withholding requirements.
(b) Withholding from Benefit Distributions. The Participant's
--------------------------------------
Employer (or the trustee of the Trust, as applicable), shall withhold from any
payments made to a Participant under this Plan all federal, state and local
income, employment and other taxes required to be withheld by the Employer (or
the trustee of the Trust, as applicable), in connection with such payments, in
amounts and in a manner to be determined in the sole discretion of the Employer
(or the trustee of the Trust, as applicable).
Vesting. The Participant shall at all times be one hundred percent
-------
(100%) vested in his Deferral Contributions, as well as in any appreciation (or
depreciation) specifically attributable to such Deferral Contributions due to
Investment Adjustments.
-9-
<PAGE>
ARTICLE 4
Suspension of Deferrals
-----------------------
4.1 Financial Emergencies. If a Participant experiences a Financial
---------------------
Emergency, the Participant may petition the Committee to suspend any deferrals
required to be made by the Participant pursuant to his current Election Form.
The Committee shall determine, in its sole discretion, whether to approve the
Participant's petition. If the petition for a suspension is approved, suspension
shall commence upon the date of approval and shall continue until the earlier of
(i) the end of the Plan Year or (ii) the date the Financial Emergency ceases to
exist, as determined by the Committee in its sole discretion.
4.2 Disability. From and after the date that a Participant is deemed to
----------
have suffered a Disability, any current Election Form of the Participant shall
automatically be suspended and no further deferrals shall be required to be made
by the Participant pursuant to his current Election Form.
4.3 Leave of Absence. If a Participant is authorized by the Participant's
----------------
Employer for any reason to take an unpaid leave of absence from the employment
of the Employer, the Participant's deferrals shall be suspended until the
earlier of the date the leave of absence expires or the Participant returns to a
paid employment status. Upon such expiration or return, deferrals shall resume
for the remaining portion of the Plan Year in which the expiration or return
occurs, based on the Election Form, if any, made for that Plan Year. If no
election was made for that Plan Year, no deferral shall be withheld. If a
Participant is authorized by the Participant's Employer for any reason to take a
paid leave of absence from the employment of the Employer, the Participant shall
continue to be considered employed by the Employer and the appropriate amounts
shall continue to be withheld from the Participant's compensation pursuant to
the Participant's then current Election Form.
ARTICLE 5
Interim and Hardship Distributions
----------------------------------
5.1 Interim Distributions. A Participant may make an advance election,
---------------------
at the time he files any Election Form for a given Plan Year, to have certain
amounts payable from his Deferral Contribution Account at an Interim
Distribution Date designated by the Participant, instead of payable at the
Participant's Benefit Distribution Date. Such amount(s) shall be measured on the
applicable Interim Distribution Date and shall be payable within thirty (30)
days of such Interim Distribution Date. The Participant's selection of an
Interim Distribution Date must comply with the language of Section 1.24.
Notwithstanding a Participant's advance election to designate an Interim
Distribution Date or Dates, the amounts which would otherwise be subject to such
Interim Distribution Date or Dates shall be distributable upon the Participant's
Benefit Distribution Date (pursuant to Article 6, 7, 8 or 9 as applicable), if
such date occurs prior to any Interim Distribution Date.
5.2 Withdrawal in the Event of a Financial Emergency. A Participant who
------------------------------------------------
believes he has experienced a Financial Emergency may request in writing a
withdrawal of a portion of his accounts necessary to satisfy the emergency. The
Committee shall determine, in its sole discretion, (i) whether a Financial
Emergency has occurred, (ii) the amount
-10-
<PAGE>
reasonably required to satisfy the Financial Emergency as well as (iii) the
accounts from which the withdrawal shall be made; provided, however, that the
withdrawal shall not exceed the Participant's Account Balance. In making any
determinations under this Section 5.2, the Committee shall be guided by the
prevailing authorities under the Code. If, subject to the sole discretion of the
Committee, the petition for a withdrawal is approved, the distribution shall be
made within thirty (30) days of the date of approval by the Committee.
ARTICLE 6
Termination Benefit
-------------------
6.1 Termination Benefit. In the event the Participant's Benefit
-------------------
Distribution Date is triggered due to his Termination of Employment (as such
term is defined in Section 1.36), the Participant shall receive a Termination
Benefit and no other benefits shall be payable under the Plan.
6.2 Payment of Termination Benefit. The Termination Benefit shall be
------------------------------
equal the Participant's Account Balance, and shall be paid (a) if the
Participant's Account Balance is less than $10,000 on the date of his or her
Termination of Employment, in one lump sum not later than thirty (30) days after
the Participant's Benefit Distribution Date, or (b) if the Participant's Account
Balance is $10,000 or more on the date of his or her Termination of Employment,
in five (5) annual installments beginning not later than thirty (30) days after
the Participant's Benefit Distribution Date. The initial installment shall be
the product of the value of the Participant's Account Balance, measured on his
Benefit Distribution Date, multiplied by 1/n (where `n' is equal to the total
number of annual benefit payments not yet distributed). Subsequent installment
payments shall be computed in a consistent fashion, and shall equal the product
of the value of the Participant's Account Balance, measured on the applicable
anniversary of his Benefit Distribution Date, multiplied by 1/n. Notwithstanding
the previous sentence, a Participant may submit a written form requesting that
any Termination Benefit be paid in the form of one lump sum; provided however,
such form shall be effective only if (i) it is submitted at least thirteen (13)
months prior the Participant's actual Benefit Distribution Date and (ii) it is
approved by the Committee, in its sole discretion.
6.3 Death Prior to Payment of Termination Benefit. If a Participant
---------------------------------------------
dies after his Termination of Employment but before the Termination Benefit is
paid to him, the Participant's unpaid Termination Benefit shall be paid to the
Participant's Beneficiary in the form determined under Section 6.2.
ARTICLE 7
Retirement Benefit
------------------
7.1 Retirement Benefit. In the event the Participant's Benefit
------------------
Distribution Date is triggered due to his Retirement (as such term is defined in
Section 1.31, the Participant shall receive the Retirement Benefit and no other
benefit shall be payable under the Plan.
7.2 Payment of Retirement Benefit. The Retirement Benefit shall be
-----------------------------
payable in the form previously selected by the Participant, pursuant to his
Retirement Benefit
-11-
<PAGE>
Distribution Form, and shall commence (or be fully paid, in the event a
lump sum form of distribution was selected) no later than thirty (30) days after
the occurrence of the Participant's Benefit Distribution Date.
The initial installment shall be the product of the value of the
Participant's Account Balance, measured on his Benefit Distribution Date,
multiplied by 1/n (where `n' is equal to the total number of annual benefit
payments not yet distributed). Subsequent installment payments shall be
computed in a consistent fashion, and shall equal the product of the value of
the Participant's Account Balance, measured on the applicable anniversary of his
Benefit Distribution Date, multiplied by 1/n.
7.3 Death Prior to Completion of Retirement Benefit. If a Participant
-----------------------------------------------
dies after Retirement but before the Retirement Benefit has commenced or been
paid in full, the Participant's unpaid Retirement Benefit payments shall be paid
to the Participant's beneficiary in a lump sum, equal to the Participant's
remaining Account Balance. Such lump sum payment shall be made within thirty
(30) days of the date of the Participant's death.
ARTICLE 8
Pre-Retirement Death Benefit
----------------------------
8.1 Pre-Retirement Death Benefit. In the event the Participant's Benefit
----------------------------
Distribution Date is triggered due to his death during employment, the
Participant's Beneficiary shall receive the pre-retirement death benefit
described below and no other benefits shall be payable under the Plan.
8.2 Payment of Pre-Retirement Death Benefit. The pre-retirement death
---------------------------------------
benefit shall be equal the Participant's Account Balance, and shall be paid (a)
if the Participant's Account Balance is less than $10,000 on the date of his or
her death, in one lump sum not later than thirty (30) days after the
Participant's Benefit Distribution Date, or (b) if the Participant's Account
Balance is $10,000 or more on the date of his or her death, in five (5) annual
installments beginning not later than thirty (30) days after the Participant's
Benefit Distribution Date. The initial installment shall be the product of the
value of the Participant's Account Balance, measured on his Benefit Distribution
Date, multiplied by 1/n (where `n' is equal to the total number of annual
benefit payments not yet distributed). Subsequent installment payments shall be
computed in a consistent fashion, and shall equal the product of the value of
the Participant's Account Balance, measured on the applicable anniversary of his
Benefit Distribution Date, multiplied by 1/n. Notwithstanding the previous
sentence, a Participant may submit a written form requesting that any pre-
retirement death benefit be paid in the form of one lump sum; provided however,
such form shall be effective only if (i) it is submitted at least thirteen (13)
months prior the Participant's actual Benefit Distribution Date and (ii) it is
approved by the Committee, in its sole discretion.
ARTICLE 9
Disability Benefit
------------------
-12-
<PAGE>
9.1 Disability Benefit. In the event the Participant's Benefit
------------------
Distribution Date is triggered due to his Disability (as such term is defined in
Section 1.15), the Participant shall receive a Disability Benefit and no other
benefits shall be payable under the Plan; provided, however, that should a
Disabled Participant otherwise have been eligible to Retire, he or she shall
receive a Retirement Benefit in accordance with Article 7 rather than a
Disability Benefit under this Article 9.
9.2 Payment of Disability Benefit. The Disability Benefit shall be equal
-----------------------------
the Participant's Account Balance, and shall be paid (a) if the Participant's
Account Balance is less than $10,000 on the date of his or her Disability, in
one lump sum not later than thirty (30) days after the Participant's Benefit
Distribution Date, or (b) if the Participant's Account Balance is $10,000 or
more on the date of his or her Disability, in five (5) annual installments
beginning not later than thirty (30) days after the Participant's Benefit
Distribution Date. The initial installment shall be the product of the value of
the Participant's Account Balance, measured on his Benefit Distribution Date,
multiplied by 1/n (where `n' is equal to the total number of annual benefit
payments not yet distributed). Subsequent installment payments shall be
computed in a consistent fashion, and shall equal the product of the value of
the Participant's Account Balance, measured on the applicable anniversary of his
Benefit Distribution Date, multiplied by 1/n. Notwithstanding the previous
sentence, a Participant may submit a written form requesting that any Disability
Benefit be paid in the form of one lump sum; provided however, such form shall
be effective only if (i) it is submitted at least thirteen (13) months prior the
Participant's actual Benefit Distribution Date and (ii) it is approved by the
Committee, in its sole discretion.
9.3 Death Prior to Payment of Disability Benefit. If a Participant dies
--------------------------------------------
after his Disability but before the Disability Benefit is paid to him, the
Participant's unpaid Disability Benefit shall be paid to the Participant's
Beneficiary in the form determined under Section 9.2.
ARTICLE 10
Elective Benefit
----------------
10.1 Election to Receive Account Balance. A Participant may request,
-----------------------------------
through submission of an executed writing, to receive distribution of his entire
Account Balance without regard to (i) whether payment of benefits under the Plan
are due or (ii) whether a Financial Emergency has occurred. Any distribution so
requested shall be made as soon as practical following the Participant's
submission of the executed writing and shall be subject to (i) forfeiture of ten
percent (10%) of his entire Account Balance and (ii) suspension of his
participation in the Plan for the balance of the Plan Year in which the
distribution is requested as well as the subsequent Plan Year.
10.2 Election to Receive Account Balance following a Change of Control.
-----------------------------------------------------------------
Following a Change in Control, a Participant may request, through submission of
an executed writing, to receive a distribution of his entire Account Balance, or
a portion thereof, without regard to (i) whether payment of benefits under the
Plan are due or (ii) whether a Financial Emergency has occurred. The request
for a distribution of his Account balance, or a part thereof, following a Change
of Control shall not be subject to a
-13-
<PAGE>
forfeiture of any part of his Account Balance; the Participant, however, shall
be subject to suspension of his participation in the Plan for the balance of the
Plan Year in which the distribution is requested as well as the subsequent Plan
Year. A distribution pursuant to this Article 10.2 shall be made as soon as
possible following the submission of the executed writing and shall be available
in lump sum or in installment payments over up to five years. The right to
request a distribution of one's Account balance, or a portion thereof, following
a Change in Control without having to forfeit any part of the Account balance
shall be limited to the ninety (90) days following a Change in Control.
ARTICLE 11
Beneficiary Designation
-----------------------
11.1 Beneficiary. Each Participant shall have the right, at any time, to
-----------
designate a Beneficiary or Beneficiaries to receive, in the event of the
Participant's death, those benefits payable under the Plan. The
Beneficiary(ies) designated under this Plan may be the same as or different from
the Beneficiary designation made under any other plan of the Employer.
11.2 Beneficiary Designation, Change, Spousal Consent. A Participant
------------------------------------------------
shall designate his Beneficiary by completing and signing a Beneficiary
Designation Form, and returning it to the Committee or its designated agent. A
Participant shall have the right to change his Beneficiary by completing,
signing and submitting to the Committee a revised Beneficiary Designation Form
in accordance with the Committee's rules and procedures, as in effect from time
to time. If the Participant names someone other than his spouse as a
Beneficiary, a spousal consent, in the form designated by the Committee, must be
signed by that Participant's spouse and returned to the Committee. Upon
acknowledgement by the Committee of a revised Beneficiary Designation Form, all
Beneficiary designations previously filed shall be deemed canceled. The
Committee shall be entitled to rely on the last Beneficiary Designation Form
both (i) filed by the Participant and (ii) acknowledged by the Committee, prior
to his death.
11.3 Acknowledgment. No designation or change in designation of a
--------------
beneficiary shall be effective until received, accepted and acknowledged in
writing by the Committee or its designated agent.
11.4 No Beneficiary Designation. If a Participant fails to designate a
--------------------------
Beneficiary as provided above or, if all designated Beneficiaries predecease the
Participant or die prior to complete distribution of the Participant's benefits,
then the Participant's designated Beneficiary shall be deemed to be his
surviving spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan shall be payable to the executor or personal
representative of the Participant's estate.
11.5 Doubt as to Beneficiary. If the Committee has any doubt as to the
-----------------------
proper Beneficiary to receive payments pursuant to this Plan, the Committee
shall have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
11.6 Death of Spouse or Dissolution of Marriage. A Participant's
-------------------------------------------
Beneficiary designation shall be deemed automatically revoked if the Participant
names a spouse as
-14-
<PAGE>
Beneficiary and the marriage is later dissolved. Without limiting the
generality of the preceding sentence, the interest in benefits of a spouse of a
Participant who has predeceased the Participant or whose marriage has been
dissolved shall automatically pass to the Participant, and shall not be
transferable by such spouse in any manner, including but not limited to such
spouse's will, nor shall such interest pass under the laws of intestate
succession.
11.7 Discharge of Obligations. The payment of benefits under the Plan
------------------------
to a Beneficiary shall fully and completely discharge the Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and the Participant's Participation Agreement shall terminate upon
such full payment of benefits.
ARTICLE 12
Termination, Amendment or Modification
--------------------------------------
12.1 Termination. Although the Employer anticipates that they will
-----------
continue the Plan for an indefinite period of time, there is no guarantee that
any Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue its
sponsorship of the Plan and to terminate the Plan, at any time, with respect to
its participating Employees by action of its board of directors. Upon the
termination of the Plan with respect to any Employer, all amounts credited to
the Participant Account of each affected Participant shall be paid to the
Participant or, in the case of the Participant's death, to the Participant's
Beneficiary, in a lump sum and the Participation Agreements relating to each of
the Participants shall terminate upon full payment of such Account Balance.
12.2 Amendment. The Employer may, at any time, amend or modify the
---------
Plan in whole or in part with respect to any or all Employers by the actions of
the Board; provided, however, that (i) no amendment (including a Plan
termination) or modification (including a Plan termination) shall be effective
to decrease or restrict the value of a Participant's Account Balance in
existence at the time the amendment or modification is made, calculated as if
the Participant had experienced a Termination of Employment as of the effective
date of the amendment or modification, or, if the amendment or modification
occurs after the date upon which the Participant was eligible to Retire,
calculated as if the Participant had Retired as of the effective date of the
amendment or modification, and (ii) except as specifically provided in Section
12.1, no amendment or modification shall be made after a Change in Control which
adversely affects the vesting, calculation or payment of benefits hereunder or
diminishes any other rights (including the right to take a distribution option
provided in the Plan prior to the Change in Control) or protections any
Participant or Beneficiary would have had, but for such amendment or
modification, unless each affected Participant or Beneficiary consents in
writing to such amendment.
12.3 Effect of Payment. The full payment of the applicable benefit under
-----------------
the provisions of the Plan shall completely discharge all obligations to a
Participant and his designated Beneficiaries under this Plan and each of the
Participant's Participation Agreement shall terminate.
-15-
<PAGE>
ARTICLE 13
Administration
--------------
13.1 Committee Duties. This Plan shall be administered by a Committee
----------------
which shall consist of the Board, or such committee as the Board shall appoint.
Members of the Committee may be Participants under this Plan. The Committee
shall also have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of this
Plan and (ii) decide or resolve any and all questions including interpretations
of this Plan, as may arise in connection with the Plan. Any individual serving
on the Committee who is a Participant shall not vote or act on any matter
relating solely to himself or herself. When making a determination or
calculation, the Committee shall be entitled to rely on information furnished by
Participant or the Employer.
13.2 Agents. In the administration of this Plan, the Committee may,
------
from time to time, employ agents and delegate to them such administrative duties
as it sees fit (including acting through a duly appointed representative) and
may from time to time consult with counsel who may be counsel to any Employer.
13.3 Binding Effect of Decisions. The decision or action of the
---------------------------
Committee with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and rules and
regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Plan.
13.4 Indemnity of Committee. All Employers shall indemnify and hold
----------------------
harmless the members of the Committee, and any Employee to whom duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with respect
to this Plan, except in case of willful misconduct by the Committee or any of
its members or any such employee.
13.5 Employer Information. To enable the Committee to perform its
--------------------
functions, each Employer shall supply full and timely information to the
Committee on all matters relating to the compensation of its Participants, the
date and circumstances of the Retirement, Disability, death or Termination of
Employment of its Participants, and such other pertinent information as the
Committee may reasonably require.
ARTICLE 14
Other Benefits and Agreements
-----------------------------
The benefits provided for a Participant and Participant's Beneficiary under
the Plan are in addition to any other benefits available to such Participant
under any other plan or program for employees of the Participant's Employer.
The Plan shall supplement and shall not supersede, modify or amend any other
such plan or programs except as may otherwise be expressly provided.
-16-
<PAGE>
ARTICLE 15
Claims Procedures
-----------------
15.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
---------------------
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a determination
with respect to the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by the Claimant, the
claim must be made within sixty (60) days after such notice was received by the
Claimant. The claim must state with particularity the determination desired by
the Claimant. All other claims must be made within one hundred eighty (180)
days of the date on which the event that caused the claim to arise occurred.
The claim must state with particularity the determination desired by the
Claimant.
15.2 Notification of Decision. The Committee shall consider a Claimant's
------------------------
claim within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or
in part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan
upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of why such
material or information is necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 15.3 below.
15.3 Review of a Denied Claim. Within sixty (60) days after receiving
------------------------
a notice from the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim. Thereafter,
but not later than thirty (30) days after the review procedure began, the
Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
-17-
<PAGE>
15.4 Decision on Review. The Committee shall render its decision on
------------------
review promptly, and not later than sixty (60) days after the filing of a
written request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the Committee's
decision must be rendered within one hundred twenty (120) days after such date.
Such decision must be written in a manner calculated to be understood by the
Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Committee deems relevant.
ARTICLE 16
Trust
-----
16.1 Establishment of the Trust. The Employer may establish one or more
--------------------------
Trusts to which the Employers may transfer such assets as the Employers
determine in their sole discretion to assist in meeting their obligations under
the Plan.
16.2 Interrelationship of the Plan and the Trust. The provisions of the
-------------------------------------------
Plan and the Participation Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Employers, Participants and the creditors of the
Employers to the assets transferred to the Trust.
16.3 Distributions from the Trust. Each Employer's obligations under the
----------------------------
Plan may be satisfied with Trust assets distributed pursuant to the terms of the
Trust, and any such distribution shall reduce the Employer's obligations under
this Agreement.
ARTICLE 17
Arbitration
-----------
17.1 Any controversy, dispute, or claim not resolved under the claims
procedure set forth in Article 15, including any claim arising out of, in
connection with, or in relation to the formation, interpretation, performance or
breach of this Plan or any action of the Committee, shall be settled exclusively
by arbitration, before a single arbitrator, in accordance with this Article 17
and the then most applicable rules of the American Arbitration Association.
Judgment upon any award rendered by the arbitrator may be entered by any state
or federal court having jurisdiction thereof. Such arbitration shall be
administered by the American Arbitration Association only if one (or both) of
the parties requests such administration. Arbitration shall be the exclusive
remedy for determining any such dispute, regardless of its nature.
Notwithstanding the foregoing, either party may in an appropriate matter apply
to a court pursuant to California Code of Civil Procedure Section 1281.8, or any
comparable provision, for provisional relief, including a temporary restraining
order or a preliminary injunction, on the ground that the award to which the
-18-
<PAGE>
applicant may be entitled in arbitration may be rendered ineffectual without
provisional relief.
17.2 In the event the parties are unable to agree upon an arbitrator, the
parties shall select a single arbitrator from a list of nine arbitrators drawn
by the parties at random from the "Independent" (or "Gold Card") list of retired
judges. If the parties are unable to agree upon an arbitrator from the list so
drawn, then the parties shall each strike names alternately from the list, with
the first to strike being determined by lot. After each party has used four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.
17.3 This agreement to resolve any disputes by binding arbitration shall
extend to claims against any parent, subsidiary or affiliate of each party, and,
when acting within such capacity, any officer, director, shareholder, employee
or agent of each party, or of any of the above, and shall apply as well to
claims arising out of state and federal statutes and local ordinances as well as
to claims arising under the common law. In the event of a dispute subject to
this Article 17, the parties shall be entitled to reasonable discovery subject
to the discretion of the arbitrator. The remedial authority of the arbitrator
shall be the same as, but no greater than, would be the remedial power of a
court having jurisdiction over the parties and their dispute. The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgement if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules of the
American Arbitration Association and these procedures, the provisions of these
procedures shall govern.
17.4 Any filing or administrative fees shall be borne initially by the
party requesting administration by the American Arbitration Association. If both
parties request such administration, the fees shall be borne initially by the
party incurring such fees as provided by the rules of the American Arbitration
Association. To the extent permitted by law, the initial fees and costs of the
arbitrator shall be borne equally by the parties, with the Employer being
responsible for the costs and fees of the arbitration to the extent it is
determined that such costs and fees may not initially be borne equally. The
prevailing party in such arbitration, as determined by the arbitrator, and in
any enforcement or other court proceedings, shall be entitled, to the extent
permitted by law, to reimbursement from the other party for all of the
prevailing party's costs (including but not limited to the arbitrator's
compensation), expenses, and attorneys' fees.
17.5 The arbitrator shall render an award and written opinion, and the
award shall be final and binding upon the parties. If any of the provisions of
this Article 17, or of this Plan, are determined to be unlawful or otherwise
unenforceable, in whole or in part, such determination shall not affect the
validity of the remainder of this Plan, and this Plan shall be reformed to the
extent necessary to carry out its provisions to the greatest extent possible and
to insure that the resolution of all conflicts between the parties, including
those arising out of statutory claims, shall be resolved by neutral, binding
arbitration. If a court should find that this section's arbitration provisions
are not absolutely binding, then the parties intend any arbitration decision and
award to be fully admissible in evidence in any subsequent action, given great
weight by any finder of fact, and treated as determinative to the maximum extent
permitted by law.
-19-
<PAGE>
17.6 Unless mutually agreed by the parties otherwise, any arbitration
shall take place in the City of Los Angeles, California.
ARTICLE 18
Miscellaneous
-------------
18.1 Status of Plan. The Plan is intended to be a plan that is not
--------------
qualified within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employee"
within the meaning of ERISA. The Plan shall be administered and interpreted to
the extent possible in a manner consistent with that intent. All Participant
accounts and all credits and other adjustments to such Participant accounts
shall be bookkeeping entries only and shall be utilized solely as a device for
the measurement and determination of amounts to be paid under the Plan. No
Participant accounts, credits or other adjustments under the Plan shall be
interpreted as an indication that any benefits under the Plan are in any way
funded.
18.2 Unsecured General Creditor. Participants and their Beneficiaries,
--------------------------
heirs, successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the payment
of benefits under this Plan, any and all of an Employer's assets, shall be, and
remain, the general, unpledged unrestricted assets of the Employer. Any
Employer's obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future.
18.3 Employer's Liability. An Employer's liability for the payment of
--------------------
benefits shall be defined only by the Plan and the Participation Agreement, as
entered into between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in the
Plan and his Participation Agreement.
18.4 Nonassignability. Neither a Participant nor any other person
----------------
shall have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate, alienate or convey in
actual receipt, the amount, if any, payable hereunder, or any part thereof,
which are, and all rights to which are expressly declared to be, unassignable
and non-transferable. No part of the amounts payable shall, prior to actual
payment, be subject to seizure, attachment, garnishment or sequestration for the
payment of any debts, judgments, alimony or separate maintenance owned by a
Participant or any other person, be transferable by operation of law in the
event of a Participant's or any other person's bankruptcy or insolvency or be
transferable to a spouse as a result of a property settlement or otherwise.
18.5 Not a Contract of Employment. The terms and conditions of this Plan
----------------------------
and the Participation Agreement, this Plan shall not be deemed to constitute a
contract of employment between any Employer and the Participant. Such
employment is hereby acknowledged to be an "at will" employment relationship
that can be terminated at any time for any reason, or no reason, with or without
cause, and with or without notice, except as otherwise provided in a written
employment agreement. Nothing in this Plan or any Participation Agreement shall
be deemed to give a Participant the right to be retained in the
-20-
<PAGE>
service of any Employer as an Employee or to interfere with the right of any
Employer to discipline or discharge the Participant at any time.
18.6 Furnishing Information. A Participant or his Beneficiary will
----------------------
cooperate with the Committee by furnishing any and all information requested by
the Committee and take such other actions as may be requested in order to
facilitate the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical examinations as the
Committee may deem necessary .
18.7 Terms. Whenever any words are used herein in the masculine, they
-----
shall be construed as though they were in the feminine in all cases where they
would so apply; and whenever any words are used herein in the singular or in the
plural, they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so apply.
18.8 Captions. The captions of the articles, sections or paragraphs of
--------
this Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
18.9 Governing Law. Subject to ERISA, the provisions of this Plan shall
-------------
be construed and interpreted according to the internal laws of the State of
California without regard to its conflicts of law principles.
18.10 Notice. Any notice or filing required or permitted to be given
------
to the Committee under this Plan shall be sufficient if in writing and hand-
delivered, or sent by registered or certified mail, to the address below:
Hollywood Park, Inc.
330 N. Brand Blvd., Suite 1100
Glendale, CA 91203
Attn: General Counsel
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark or the receipt
for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or sent by
mail, to the last known address of the Participant.
18.11 Successors. The provisions of this Plan shall bind and inure to the
----------
benefit of the Participant's Employer and its successors and assigns and the
Participant and the Participant's designated Beneficiaries.
18.12 Validity. In case any provision of this Plan shall be illegal or
--------
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as if such
illegal or invalid provision had never been inserted herein.
-21-
<PAGE>
18.13 Incompetent. If the Committee determines in its discretion that a
-----------
benefit under this Plan is to be paid to a minor, a person declared incompetent
or to a person incapable of handling the disposition of that person's property,
the Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or incapable person. The Committee may require proof of minority, incompetence,
incapacity or guardianship, as it may deem appropriate prior to distribution of
the benefit. Any payment of a benefit shall be a payment for the account of the
Participant and the Participant's Beneficiary, as the case may be, and shall be
a complete discharge of any liability under the Plan for such payment amount.
18.14 Distribution in the Event of Taxation. If, for any reason, all
-------------------------------------
or any portion of a Participant's benefit under this Plan becomes taxable to the
Participant prior to a receipt, a Participant may petition the Committee or the
trustee of the Trust, as applicable, for a distribution of that portion of his
benefit that has become taxable. Upon the grant of such a petition, which grant
shall not be unreasonably withheld, a Participant's Employer shall distribute to
the Participant immediately, funds in an amount equal to the taxable portion of
his benefit (which amount shall not exceed a Participant's unpaid Account
Balance under the Plan). If the petition is granted, the tax liability
distribution shall be made within ninety (90) days of the date when the
Participant's petition is granted. Such a distribution shall affect and reduce
the benefits to be paid under this Plan.
18.15 Insurance. The Employers, on their own behalf or on behalf of the
---------
trustee of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such forms as
the Trust may choose. The Employers or the trustee of the Trust, as the case
may be, shall be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such policy or policies,
and at the request of the Employers the Participant shall submit to medical
examinations and supply such information and execute such documents as may be
required by the insurance company or companies to whom the Employers have
applied for insurance.
18.16 Employer. Each Subsidiary of the Employer can become an adopting
--------
Employer in accordance with the terms of the Plan. With the consent of the
Employer, the Plan may be adopted in accordance with the provisions of Section
17.17 by any other Subsidiary of the Employer for the benefit of its Eligible
Employees.
18.17 Additional Employers. Any Subsidiary of the Employer may adopt
--------------------
the Plan and become an Employer hereunder by filing with the Committee a
certified copy of a resolution of the Board of Directors of the Subsidiary
providing for its adoption of the Plan and a certified copy of a resolution of
the Board of Directors of the Employer consenting to such adoption.
-22-
<PAGE>
IN WITNESS WHEREOF, the Employer has signed this Plan document as of
______________________, ________.
Hollywood Park, Inc.
A Delaware Corporation
By: __________________________________
Name: ________________________________
(printed name)
Title: _________________________________
-23-
<PAGE>
Exhibit 5.1
February 24, 2000
Pinnacle Entertainment, Inc
330 North Brand Avenue
Glendale, California 91203
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by you with the Securities and Exchange Commission in
connection with the registration of $15 million in obligations (the
"Obligations") pursuant to the terms of the Hollywood Park, Inc. Executive
Deferred Compensation Plan (the "Deferred Compensation Plan") of Pinnacle
Entertainment, Inc. (formerly known as Hollywood Park, Inc.) a Delaware
corporation (the "Company"). As your counsel in connection with this
transaction, we have examined the proceedings proposed to be taken in connection
with the Deferred Compensation Plan and the issuance of the Obligations pursuant
thereto and such other matters and documents as we have deemed necessary or
relevant as a basis for this opinion.
Based on these examinations, it is our opinion that upon completion of the
proceedings being taken or which we, as your counsel, contemplate will be taken
prior to the issuance of the Obligations, such Obligations, when issued in the
manner referred to in the Registration Statement and the Deferred Compensation
Plan, will be duly authorized, legally and validly issued and binding
obligations of the Company.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Irell & Manella LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on Form S-8, with respect to the registration of shares issued pursuant to the
Hollywood Park, Inc. Executive Deferred Compensation Plan, of our report dated
February 23, 1999 on the consolidated balance sheets of Hollywood Park, Inc. and
subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows for the three
years ended December 31, 1998, which report appears in the Annual Report on Form
10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1998.
/s/ ARTHUR ANDERSEN LLP
Los Angeles, California
February 9, 2000
