<PAGE>
As filed with the Securities and Exchange Commission on
December 29, 1999.
Registration Statement No. 333-51073
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MANDALAY RESORT GROUP*
(Exact name of issuer as specified in its charter)
NEVADA 88-0121916
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3950 LAS VEGAS BOULEVARD SOUTH, LAS VEGAS, NEVADA 89119
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
(Full Title of the Plan)
Yvette E. Landau, General Counsel
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, NV 89119
(Name and address of agent for service)
(702) 632-6700
(Telephone number, including area code, of agent for service)
Copies to:
Howell J. Reeves, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street - 22nd Floor
Philadelphia, PA 19103
(215) 977-2000
- ----------
* Effective June 18, 1999 Circus Circus Enterprise, Inc. amended its Articles
of Incorporation to change its name to Mandalay Resort Group.
<PAGE>
PART I
A prospectus setting forth the information required by Part I of Form
S-8 will be sent or given to participants in Mandalay Resort Group's Amended and
Restated 1998 Stock Option Plan as specified by Rule 428(b)(1)(i) under the
Securities Act of 1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the registrant
(which filed such documents under its previous corporate name, "Circus Circus
Enterprises, Inc.," until it changed its corporate name to Mandalay Resort Group
on June 18, 1999) are incorporated by reference in this registration statement:
(a) the registrant's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999;
(b) the registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended April 30, 1999, July 31, 1999 and October 31, 1999, respectively;
(c) the registrant's Current Report on Form 8-K dated June 18, 1999;
(d) the description of the registrant's common stock contained in its
Form 8-A Registration Statement declared effective by the Commission on October
25, 1983, and any amendments or reports filed for the purpose of updating such
description;
(e) the description of the registrant's common stock purchase rights
contained in its Form 8-A Registration Statement declared effective by the
Commission on August 12, 1994, and any amendments or reports filed for the
purpose of updating such description; and
(f) all documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
offered hereby then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Revised Statutes (the "Nevada Law")
permits a corporation to indemnify any of its directors, officers, employees and
agents against costs and expenses arising from claims, suits and proceedings if
such persons acted in good faith and in a manner 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 his conduct
was unlawful. Notwithstanding the foregoing, in an action by or in the right of
the corporation, no indemnification may be made in respect of any claim, issue
or matter, as to which such person is adjudged to be liable to the corporation
unless a court of competent jurisdiction determines that in view of all the
circumstances of the case, indemnification would be appropriate. The
indemnification provisions of the Nevada Law expressly do not exclude any other
rights a person may have to indemnification under any bylaw, among other things.
In accordance with Nevada Revised Statutes 78.037, Article XI of the
registrant's Restated Articles of Incorporation provides that no director or
officer of the registrant shall be personally liable to the registrant or its
stockholders for damages for breach of fiduciary duty as a director or officer,
except for (a) acts or omissions which include intentional misconduct, fraud or
a knowing violation of law, or (b) the payment of dividends in violation of
Nevada Revised Statutes 78.300.
Article X, Section 10.2 of the registrant's Restated Bylaws provides
for mandatory indemnification of directors and officers to the fullest extent
now or hereafter permitted by law.
The registrant's Amended and Restated 1998 Stock Option Plan (the
"Plan") provides that no member of the committee shall be liable for any action
taken or omitted to be taken or for any determination made by him or her in good
faith with respect to the Plan, and that the registrant shall indemnify and hold
harmless each member of the committee against any cost or expense (including
counsel fees) or liability (including any sum paid in settlement of a claim with
the approval of the board of directors) arising out of any act or omission in
connection with the administration or interpretation of the Plan, unless arising
out of such person's own fraud or bad faith.
The registrant maintains a liability insurance policy under which
officers and directors are generally indemnified against losses and liability
(including costs, expenses, settlements, and judgments) incurred by them in such
capacities, individually or otherwise, other than specified excluded losses. The
insurance policy will pay on behalf of the registrant all covered losses for
which the registrant grants indemnification of each officer or director as
permitted by law which the officer or director becomes legally obligated to pay
on account of an indemnifiable claim. The policy would generally cover, in
addition to other liabilities, liabilities arising under the federal securities
laws; however, the subject of loss may not include any claim or claims under
federal or state law arising out of or relating to (i) the filing of a
registration statement with the Securities and Exchange Commission or the offer
or sale by means of a prospectus of any security with respect to which a
registration statement has been filed,
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including, but not limited to, any claim asserting that such registration
statement or prospectus contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) any underwriting agreement for
the offer or sale of any security, or (iii) any accounting of profits from the
purchase or sale of securities of the registrant under Section 16(b) of the
Securities Exchange Act of 1934 or a similar state law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4(a). Restated Articles of Incorporation of the registrant and Certificate
of Amendment thereto. (Incorporated by reference to Exhibit 3(a) to
the registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 1991.)
4(b). Certificate of Division of Shares into Smaller Denominations, dated
June 20, 1991. (Incorporated by reference to Exhibit 3(b) to the
registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 1992.)
4(c). Certificate of Division of Shares into Smaller Denominations, dated
June 22, 1993. (Incorporated by reference to Exhibit 3(i) to the
registrant's Current Report on Form 8-K dated July 21, 1993.)
4(d). Certificate of Amendment of Restated Articles of Incorporation
(Incorporated by reference to Exhibit 3(i) to the registrant's Current
Report on Form 8-K dated June 18, 1999.
4(e). Restated Bylaws of the registrant. (Incorporated by reference to
Exhibit 3(ii) to the registrant's Annual Report on Form 10-K for the
fiscal year ended January 31, 1999.)
4(f). Rights Agreement dated as of July 14, 1994, between the registrant and
First Chicago Trust Company of New York. (Incorporated by reference to
Exhibit 4 to the registrant's Current Report on Form 8-K dated
August 15, 1994.)
4(g). Amendment to Rights Agreement effective as of April 16, 1996, between
the registrant and First Chicago Trust Company of New York.
(Incorporated by reference to Exhibit 4(a) to the registrant's
Quarterly Report on Form 10-Q for the quarterly period ended
July 31, 1996.)
4(h). Amended and Restated 1998 Stock Option Plan.
23 Consent of Arthur Andersen LLP
II-3
<PAGE>
24 Power of Attorney (included on page II-6 of this registration
statement).
Item 9. Undertakings.
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 l0(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;
(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)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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.
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 (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.
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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 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 Act and will
be governed by the final adjudication of such issue.
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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-8 and has duly caused this amendment to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Las Vegas, State of Nevada, on the 28th day of December, 1999.
MANDALAY RESORT GROUP
By: Michael S. Ensign
---------------------
Michael S. Ensign, Chairman
of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael S. Ensign and Glenn Schaeffer,
and each of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
post-effective 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, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, thereby ratifying and
confirming all that said attorneys-in-fact and agents or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
Michael S. Ensign Chairman of the Board December 28, 1999
- ---------------------------- and Chief Executive
Michael S. Ensign Officer (Principal
Executive Officer)
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<PAGE>
Signature Title Date
- --------- ----- ----
William A. Richardson Vice Chairman of the Board December 28, 1999
- ----------------------------
William A. Richardson
Glenn W. Schaeffer President, Chief Financial December 28, 1999
- ---------------------------- Officer, Treasurer and Director
Glenn W. Schaeffer (Principal Financial Officer)
Les Martin Vice President and December 28, 1999
- ---------------------------- Chief Accounting Officer
Les Martin (Principal Accounting Officer)
William E. Bannen Director December 28, 1999
- ----------------------------
William E. Bannen
Arthur H. Bilger Director December 28, 1999
- ----------------------------
Arthur H. Bilger
Michael D. McKee Director December 28, 1999
- ----------------------------
Michael D. McKee
Rose McKinney-James Director December 28, 1999
- ----------------------------
Rose McKinney-James
Donna B. More Director December 28, 1999
- ----------------------------
Donna B. More
II-7
<PAGE>
Exhibit 4(h)
MANDALAY RESORT GROUP
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN
The purposes of this Amended and Restated 1998 Stock Option Plan (the
"Plan") are to enable Mandalay Resort Group (the "Company") and its Subsidiaries
to attract and retain the services of individuals (other than Excluded
Individuals) with managerial, professional or supervisory skills as employees of
the Company and its Subsidiaries, to retain able consultants and advisors (other
than Excluded Individuals) and to motivate such persons to use their best
efforts on behalf of the Company.
2. GENERAL PROVISIONS
2.1 Definitions
As used in the Plan:
(a) "Board of Directors" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, including any and all
amendments thereto.
(c) "Committee" means the committee appointed by the Board of Directors
from time to time to administer the Plan pursuant to Section 2.2.
(d) "Common Stock" means the Company's Common Stock, $.01-2/3 par value.
(e) "Excluded Individuals" means, as of the date of determination, those
individuals who are then serving, have been elected, nominated or
appointed by the Board of Directors or by the Company's stockholders
to serve in any of the following capacities: (i) as a member of the
Board of Directors, (ii) as Chairman of the Board, Vice Chairman of
the Board, President, a Vice President, Secretary or Treasurer of the
Company, or (iii) in any other position (regardless of title)
obligating such individual to file reports pursuant to Section 16(a)
of the Securities Exchange Act of 1934.
(f) "Fair Market Value" means, with respect to a specific date, the last
reported sale price of the Common Stock on the NYSE Composite Tape on
the date such Fair Market Value is being determined, and, in the
absence of any sale on such day, the Fair Market Value as determined
in good faith by the Committee on the basis of such quotations and
other considerations as the Committee deems appropriate.
(g) "NYSE" means the New York Stock Exchange.
(h) "Participant" means a person to whom a Stock Option has been granted
under the Plan.
(i) "Stock Option" means a stock option granted under the Plan.
<PAGE>
(j) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the
time of the granting of the Stock Option, each of the corporations
other than the last corporation in the unbroken chain owns 50% or more
of the total voting power of all classes of stock in one of the other
corporations in such chain.
2.2 Administration of the Plan
(a) The Plan shall be administered by the Committee which shall at all
times consist of two (2) or more persons, each of whom shall be a
member of the Board of Directors. The Board of Directors may from time
to time remove members from, or add members to, the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the
Board of Directors. The Committee shall select one of its members as
Chairman, and shall hold meetings at such times and places as it may
determine.
(b) The Committee shall have the full power, subject to and within the
limits of the Plan, to: (i) interpret and administer the Plan, and
Stock Options granted under it; (ii) make and interpret rules and
regulations for the administration of the Plan and to make changes in
and revoke such rules and regulations (and in the exercise of this
power, shall generally determine all questions of policy and
expediency that may arise and may correct any defect, omission, or
inconsistency in the Plan or any agreement evidencing the grant of any
Stock Option in a manner and to the extent it shall deem necessary to
make the Plan fully effective); (iii) determine those persons to whom
Stock Options shall be granted and the number of Stock Options to be
granted to any person; (iv) determine the terms of Stock Options
granted under the Plan, consistent with the provisions of the Plan;
and (v) generally, exercise such powers and perform such acts in
connection with the Plan as are deemed necessary or expedient to
promote the best interests of the Company. The interpretation and
construction by the Committee of any provisions of the Plan or of any
Stock Option shall be final, binding and conclusive.
(c) The Committee may act only by a majority of its members then in
office; however, the Committee may authorize any one (1) or more of
its members or any officer of the Company to execute and deliver
documents on behalf of the Committee.
(d) No member of the Committee shall be liable for any action taken or
omitted to be taken or for any determination made by him or her in
good faith with respect to the Plan, and the Company shall indemnify
and hold harmless each member of the Committee against any cost or
expense (including counsel fees) or liability (including any sum paid
in settlement of a claim with the approval of the Board of
Directors) arising out of any act or omission in connection
with the administration
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or interpretation of the Plan, unless arising out of such person's own
fraud or bad faith.
2.3 Effective Date
The Plan shall become effective upon its adoption by the Board of
Directors, and Stock Options may be granted upon such adoption and from
time to time thereafter during the period the Plan remains in effect.
2.4 Duration
The Plan shall remain in effect for a period of ten (10) years following
its adoption by the Board of Directors on April 23, 1998 or until sooner
terminated by the Board of Directors.
2.5 Shares Subject to the Plan
Subject to adjustment in accordance with Section 4.1, the maximum number of
shares of Common Stock which may be issued pursuant to Stock Options
granted under the Plan shall be 3,000,000. The Stock Options shall be
subject to adjustment in accordance with Section 4. 1, as appropriate. The
shares to be issued upon exercise of Stock Options may be either authorized
and unissued shares of Common Stock or authorized and issued shares of
Common Stock purchased or acquired by the Company for any purpose and held
by the Company as treasury shares. If a Stock Option or portion thereof
shall expire or is terminated, canceled or surrendered for any reason
without being exercised in full, the unpurchased shares of Common Stock
which were subject to such Stock Option or portion thereof shall be
available for future grants of Stock Options under the Plan.
2.6 Amendments
The Plan may be suspended, terminated or reinstated, in whole or in part,
at any time by the Board of Directors. The Board of Directors may from time
to time make such amendments to the Plan as it may deem advisable,
provided, however, that without the approval of the Company's stockholders,
no amendment shall be made which permits the grant of Stock Options to
Excluded Individuals. Except as otherwise provided herein, termination or
amendment of the Plan shall not, without the consent of a Participant,
affect such Participant's rights under any Stock Option previously granted
to such Participant.
2.7 Participants and Grants
Subject to the limitations in Section 2.8, Stock Options may be granted by
the Committee to (i) any full-time salaried employee of the Company and/or
a Subsidiary who has managerial, professional or supervisory
responsibilities or (ii) any consultant or advisor who renders bona fide
services to the Company and/or a Subsidiary, in each case, where
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<PAGE>
the Committee determines that such individual has the capacity to make a
substantial contribution to the success of the Company. The Committee may
grant Stock Options to purchase such number of shares of Common Stock
(subject to the limitations of Section 2.5) as the Committee may, in its
sole discretion, determine. In granting Stock Options under the Plan, the
Committee, on an individual basis, may vary the number of Stock Options as
between Participants and may grant Stock Options to a Participant in such
amounts as the Committee may determine in its sole discretion.
2.8 Individuals Not Eligible to Receive Grants
Notwithstanding any provision to the contrary, Stock Options may not be
granted pursuant to the Plan to any individual who, on the date such grant
would be made, is either (i) an Excluded Individual or (ii) an individual
to whom the issuance of shares of Common Stock upon the exercise of a Stock
Option would not be eligible for registration on Securities and Exchange
Commission Form S-8 or any successor form providing for the registration of
securities offered generally to employees of an issuer pursuant to an
employee benefit plan.
3. STOCK OPTIONS
3.1 General
All Stock Options granted under the Plan shall be evidenced by written
agreements executed by the Company and the Participant to whom granted,
which agreement shall state the number of shares of Common Stock which may
be purchased upon the exercise thereof and shall contain such investment
representations and other terms and conditions as the Committee may from
time to time determine. The Stock Options which may be granted under the
Plan are not intended to qualify as incentive stock options under Section
422 of the Code.
3.2 Price
Subject to the provisions of Section 4.1, the purchase price per share of
Common Stock subject to a Stock Option shall, in no case, be less than one
hundred percent (100%) of the Fair Market Value of a share of Common Stock
on the date the Stock Option is granted.
3.3 Period
The duration or term of each Stock Option granted under the Plan shall be
for such period as the Committee shall determine but in no event more than
ten (10) years from the date of grant thereof,
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3.4 Exercise
Subject to Section 4.4, Stock Options may be exercisable immediately upon
granting of the Stock Option or at such other time or times as the
Committee shall specify when granting the Stock Option. Once exercisable, a
Stock Option shall be exercisable, in whole or in part, by delivery of a
written notice of exercise to the Secretary of the Company at the principal
office of the Company specifying the number of shares of Common Stock as to
which the Stock Option is then being exercised together with payment of the
full purchase price for the shares being purchased upon such exercise.
Until the shares of Common Stock as to which a Stock Option is exercised
are issued, the Participant shall have none of the rights of a shareholder
of the Company with respect to such shares.
3.5 Payment
The purchase price for shares of Common Stock as to which a Stock Option
has been exercised and any amount required to be withheld, as contemplated
by Section 4.3, may be paid:
(a) In United States dollars in cash, or by check, bank draft or money
order payable in United States dollars to the order of the Company; or
(b) By the delivery by the Participant to the Company of whole shares of
Common Stock having an aggregate Fair Market Value on the date of
payment equal to the aggregate of the purchase price of Common Stock
as to which the Stock Option is then being exercised or by the
withholding of whole shares of Common Stock having such Fair Market
Value upon the exercise of such Stock Option; or
(c) By a combination of both (a) and (b) above.
The Committee may, in its discretion, impose limitations, conditions and
prohibitions on the use by a Participant of shares of Common Stock to pay
the purchase price payable by such Participant upon the exercise of a Stock
Option.
3.6 Termination of Employment
(a) In the event a Participant's employment by, or relationship as a
consultant or advisor to, the Company or its Subsidiaries shall
terminate for any reason other than those reasons specified in
Sections 3.6(b), (c) or (d) hereof while such Participant holds Stock
Options granted under the Plan, then each Stock Option held by such
Participant at the date of such termination (which has not previously
lapsed or terminated) shall, unless otherwise specified in the written
agreement evidencing such Stock Option, continue to be exercisable by
such Participant (but only to the extent exercisable at the time of
such termination) for a period of three
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months after such termination, unless the Stock Option expires earlier
by its terms.
(b) If a Participant's employment by, or relationship as a consultant or
advisor to, the Company or its Subsidiaries shall terminate as a
result of such Participant's total disability, then each Stock Option
held by such Participant at the date of such termination (which has
not previously lapsed or terminated) shall immediately become fully
exercisable as to the total number of shares of Common Stock subject
thereto (whether or not exercisable to that extent at the time of such
termination) and shall remain so exercisable by such Participant for a
period of six months after such termination unless such Stock Option
expires earlier by its terms. For purposes of the foregoing sentence,
"total disability" shall mean permanent mental or physical disability
as determined by the Committee.
(c) If a Participant's employment by, or relationship as a consultant or
advisor to, the Company shall terminate as a result of the
Participant's death, then each Stock Option held by such Participant
at the date of such termination (which has not previously lapsed or
terminated) shall immediately become fully exercisable as to the total
number of shares of Common Stock subject thereto (whether or not
exercisable to that extent at the time of death) by the executor or
administrator of the Participant's estate or by the person or persons
to whom the deceased Participant's rights thereunder shall have passed
by will or by the laws of descent or distribution, and shall remain so
exercisable for a period of twelve months after such Participant's
death unless such Stock Option expires earlier by its terms.
(d) If a Participant (i) shall cease to be employed by, or have a
relationship of consultant or advisor to, the Company or a Subsidiary
because of his discharge or termination for dishonesty, or because he
violated any material provision of any employment or other agreement
between him and the Company or a Subsidiary, or (ii) shall voluntarily
resign or terminate his employment with or relationship as a
consultant or advisor to the Company or a Subsidiary under or followed
by such circumstances as would constitute a breach of any material
provision of any employment or other agreement between him and the
Company or a Subsidiary, or (iii) shall have committed an act of
dishonesty not discovered by the Company or a Subsidiary prior to the
cessation of his employment with or relationship as a consultant or
advisor to the Company or a Subsidiary, but which would have resulted
in his discharge or termination if discovered prior to such date, or
(iv) shall, either before or after cessation of his employment with or
relationship as a consultant or advisor to the Company or a
Subsidiary, without the written consent of the Company or a
Subsidiary, use (except for the benefit of the Company or a
Subsidiary) or disclose to any other person any confidential
information relating to the continuation or proposed continuation of
the business or any trade secrets of the Company or a Subsidiary
obtained as a result of or in connection with such employment or
relationship as a consultant or advisor, or (v) shall, either before
or after the cessation of his employment with or relationship as a
consultant or
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<PAGE>
advisor to the Company or a Subsidiary, without the written consent of
the Company or a Subsidiary, directly or indirectly, give advice to,
or serve as an employee, director, officer, or trustee of, or in any
similar capacity with, or otherwise directly or indirectly participate
in the management, operation, or control of, or have any direct or
indirect financial interest in, any corporation, partnership, or other
organization which directly or indirectly competes in any respect with
the Company or its Subsidiaries, or (vi) shall cease to be employed by
or have a relationship as a consultant or advisor to the Company or a
Subsidiary because of his inability to continue as an employee,
consultant or advisor, as the case may be, under any law or
governmental regulation, including any Nevada gaming law or
regulation, or (vii) shall voluntarily resign or terminate his
employment with or relationship as a consultant or advisor to the
Company or a Subsidiary under or followed by such circumstances as
would have rendered him unable to have continued as an employee,
consultant or advisor, as the case may be, under any law or
governmental regulation, including any Nevada gaming law or
regulation, then forthwith from the happening of any such event, any
Stock Options then held by such Participant shall terminate and become
void to the extent that they then remain unexercised. Additional
forfeiture provisions may be included within the terms of any Stock
Option grant to a Participant as may be determined by the Committee in
its discretion, provided such provisions are set forth in the written
agreement evidencing such Stock Option.
3.7 Effect of Leaves of Absence
It shall not be considered a termination of employment when a
Participant is on military or sick leave or such other type of leave
of absence which is considered as continuing intact the employment
relationship of the Participant with the Company or any of its
Subsidiaries. In case of such leave of absence, the employment
relationship shall be deemed to have continued until the later of (i)
the date when such leave shall have lasted ninety days in duration, or
(ii) the date as of which the Participant's right to re-employment
shall have no longer been guaranteed either by statute or contract.
4. MISCELLANEOUS PROVISIONS
4.1 Adjustments Upon Changes in Capitalization
In the event of changes to the outstanding shares of Common Stock of the
Company through reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend, stock consolidation or
otherwise, or in the event of a sale of all or substantially all
of the assets of the Company, an appropriate and proportionate
adjustment shall be made in the number and kind of shares as to which Stock
Options may be granted. A corresponding adjustment changing the number or
kind of shares and/or the purchase price per share of unexercised Stock
Options or portions thereof which shall have been granted prior to any such
change shall likewise be made.
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Notwithstanding the foregoing, in the case of a reorganization, merger or
consolidation, or sale of all or substantially all of the assets of the
Company, in lieu of adjustments as aforesaid, the Committee may in is
discretion accelerate the date after which a Stock Option may or may not be
exercised and/or the stated expiration date thereof. Adjustments or changes
under this Section shall be made by the Committee, whose determination as
to what adjustments or changes shall be made, and the extent thereof, shall
be final, binding and conclusive.
4.2 Non-Transferability
No Stock Option shall be transferable except by will or the laws of descent
and distribution, nor shall any Stock Option be exercisable during the
Participant's lifetime by any person other than the Participant or his
guardian or legal representative.
4.3 Withholding
The Company's obligations under this Plan shall be subject to applicable
federal, state and local tax withholding requirements. Federal, state and
local withholding tax due at the time of a grant or upon the exercise of
any Stock Option may, in the discretion of the Committee, be paid in shares
of Common Stock already owned by the Participant or through the withholding
of shares otherwise issuable to such Participant, upon such terms and
conditions as the Committee shall determine. If the Participant shall fail
to pay, or make arrangements satisfactory to the Committee for the payment,
to the Company of all such federal, state and local taxes required to be
withheld by the Company, then the Company shall, to the extent permitted by
law, have the right to deduct from any payment of any kind otherwise due to
such Participant an amount equal to any federal, state or local taxes of
any kind required to be withheld by the Company.
4.4 Compliance with Law and Approval of Regulatory Bodies
No Stock Option shall be exercisable and no shares will be delivered under
the Plan except in compliance with all applicable federal and state laws
and regulations including, without limitation, compliance with all federal
and state securities laws and withholding tax requirements and with the
rules of the NYSE and of all other domestic stock exchanges on which the
Common Stock may be listed. Any share certificate issued to evidence shares
for which a Stock Option is exercised may bear legends and statements the
Committee shall deem advisable to assure compliance with federal and state
laws and regulations. No Stock Option shall be exercisable and no shares
will be delivered under the Plan, until the Company has obtained consent or
approval from regulatory bodies, federal or state, having jurisdiction over
such matters as the Committee may deem advisable. In the case of the
exercise of a Stock Option by a person or estate acquiring the right to
exercise the Stock Option as a result of the death of the Participant, the
Committee may require reasonable evidence as to the ownership of the Stock
Option and may require consents and releases of taxing authorities that it
may deem advisable.
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4.5 No Right to Employment
Neither the adoption of the Plan nor its operation, nor any document
describing or referring to the Plan, or any part thereof, nor the granting
of any Stock Options hereunder, shall confer upon any Participant under the
Plan any right to continue in the employ of the Company or any Subsidiary
or in any consulting or other relationship which is the basis for such
Participant's receipt of any Stock Option, or shall in any way affect the
right and power of the Company or any Subsidiary to terminate the
employment or other relationship of any Participant at any time with or
without assigning a reason therefor, to the same extent as might have been
done if the Plan had not been adopted.
4.6 Exclusion from Pension Computations
By acceptance of a grant of a Stock Option under the Plan, the recipient
shall be deemed to agree that any income realized upon the receipt or
exercise thereof or upon the disposition of the shares received upon
exercise will not be taken into account as "base remuneration", "wages",
"salary" or "compensation" in determining the amount of any contribution to
or payment or any other benefit under any pension, retirement, incentive,
profit-sharing or deferred compensation plan of the Company or any
Subsidiary.
4.7 Abandonment of Options
A Participant may at any time abandon a Stock Option prior to its
expiration date. The abandonment shall be evidenced in writing, in such
form as the Committee may from time to time prescribe. A Participant shall
have no further rights with respect to any Stock Option so abandoned.
4.8 Severability
If any of the terms or provisions of the Plan conflict with the
requirements of law, then such terms or provisions shall be deemed
inoperative to the extent they so conflict with such requirements of law.
4.9 Interpretation of the Plan
Headings are given to the Sections of the Plan solely as a convenience to
facilitate reference, such headings, numbering and paragraphing shall not
in any case be deemed in any way material or relevant to the construction
of the Plan or any provision hereof. The use of the masculine gender shall
also include within its meaning the feminine. The use of the singular shall
also include within its meaning the plural and vice versa.
4.10 Use of Proceeds
Funds received by the Company upon the exercise of Stock Options shall be
used for the general corporate purposes of the Company.
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4.11 Construction of Plan
The place of administration of the Plan shall be in the State of Nevada,
and the validity, construction, interpretation, administration and effect
of the Plan and of its rules and regulations, and rights relating to the
Plan, shall be determined solely in accordance with the laws of the State
of Nevada.
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Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of our report dated
February 22, 1999 included or incorporated by reference in the Annual Report of
Mandalay Resort Group (formerly Circus Circus Enterprises, Inc.) on Form 10-K
for the year ended January 31, 1999 and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
December 29, 1999
