<PAGE>
As filed with the Securities and Exchange Commission On December 14, 2000
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MTR GAMING GROUP, INC.
(exact name of registrant as specified in its charter)
DELAWARE 84-1103135
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation)
STATE ROUTE 2 SOUTH, P.O. BOX 358, CHESTER, WEST VIRGINIA 26034
(Address of principal executive offices)
Agreements dated as of June 6, 1999, February 21, 2000,
October 13, 2000 and October 25, 2000
1999 Stock Incentive Plan
2000 Stock Incentive Plan
(Full title of plans)
EDSON R. ARNEAULT
STATE ROUTE 2 SOUTH, P.O. BOX 358, CHESTER, WEST VIRGINIA 26036
(Name and address of agent of service)
(304) 387-5712
(Telephone number, including area code, or agent for service)
Copies of Communication to:
ROBERT L. RUBEN, ESQ.
EDWARD A. FRIEDMAN, ESQ.
RUBEN & ARONSON, LLP
3299 K STREET, N.W., SUITE 403
WASHINGTON, D.C. 20007
(202) 965-3600
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Shares of Common Stock,
$.00001 par value 1,015,000 $2.50(1) $2,537,500 $669.90
---------------------------------------------------------------------------------------------------------------
885,000 $2.00(1) $1,770,000 $467.28
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175,000 $6.25(1) $1,093,750 $288.75
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80,000 $5.05(2) $404,000 $106.66
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Total 2,155,000 $5,805,250 $1,532.59
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</TABLE>
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(1) Based, pursuant to Rule 457(h), on the exercise price of the related
option. Represents shares issuable upon the exercise of options granted by
the Company prior to the date hereof.
(2) Based, pursuant to Rule 457(c), on $5.05 per share, which was the average
of the high and low prices of the Registrant's Common Stock on the National
Association of Securities Dealers Automated Quotation System on
December 11, 2000. Includes 30,000 shares that may be issued by the Company
upon the exercise of Options that may be granted by the Company in the
future under the 2000 Stock Incentive Plan and 50,000 shares that may be
issued by the Company upon the exercise of Options that may be granted by
the Company in the future under the 1999 Stock Incentive Plan.
<PAGE>
MTR GAMING GROUP, INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with the Securities and
Exchange Commission (the "Commission") by MTR Gaming Group, Inc. (the "Company"
or the "Registrant"):
(a) The Registrant's Annual Report on Form 10-K (File No. 0-20508)
for the fiscal year ended December 31, 1999, as amended on
Form 10-K/A filed on June 16, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2000;
(d) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2000;
(e) The Company's Current Report on Form 8-K (filed on February 4,
2000);
(f) The Company's Current Report on Form 8-K (filed on May 3,
2000);
(g) The Company's Current Report on Form 8-K (filed on August 17,
2000);
(h) The Company's Current Report on Form 8-K (filed on September
8, 2000); and
(i) The description of the Common Stock of the Company, par value
$.00001 per share ("Common Stock") contained in the Company's
Registration Statement on Form 8-A dated August 6, 1992.
All documents filed with the Commission by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Members of the law firm of Ruben & Aronson, LLP, which is counsel to
the Company, collectively own 116,578 shares of Common Stock and options to
acquire beneficial ownership of 725,000 shares of Common Stock (all of which
shares may be acquired within 60 days).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers an employees of corporations
under certain conditions and subject to certain limitations. In addition,
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a corporation to provide, in its articles of incorporation, that
directors shall not have liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duty, subject to certain prescribed
exceptions.
In addition, the indemnification provided by Section 145 shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any By-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. The Certificate and
By-laws of the Company are consistent with Section 145. The Certificate provides
that no director shall be personally liable
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except: (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts and omissions
not in good faith or which involve intentional misconduct or knowing violation
of the law; (iii) for acts specified in Title 8, Section 174 of the DGCL, or
(iv) for which the director derived an improper personal benefit.
In addition to the Certificate, the Company's By-laws provide
indemnification (the "Indemnity Provisions") for any person who is or was a
party to any threatened, pending or completed action, suit, or proceeding
whether civil, criminal, administrative, arbitrative, investigative procedure by
reason of the fact that he or she was a director, officer, employee, fiduciary
or agent of the Company or served in such capacity with another entity at the
Company's request (such persons are defined as an "Indemnified Party" or
"Indemnified Parties"). With respect to third party actions, the Indemnity
Provisions represent the Company's commitment to indemnify based on such persons
incurring expenses (including legal fees) judgments, fines, excise taxes, and
amounts paid in settlement based on civil or criminal matters. In the case of a
civil matter, the Indemnified Parties must have acted in good faith and in a
manner reasonably believed by that person to be in or not opposed to the best
interests of the Company. With respect to a criminal matter, the person must
have had no reasonable cause to believe that the conduct was unlawful.
With respect to derivative actions, Indemnified Parties are entitled to
indemnification for any and all expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the settlement or
defense of such actions. The Indemnified Party must show that he or she acted in
good faith and a manner reasonably believed by that person to be in or not
opposed to the best interests of the Company, except that no indemnification
shall be available if such person has been adjudged liable for negligence or
misconduct in performing his or her duties to the Company, unless the court in
which such action or suit was brought has determined upon application that,
despite the adjudication of liability but in view of all of the circumstances of
the case, the Indemnified Party is fairly and reasonably entitled to
indemnification for the expenses the court deems proper. Nonetheless, if the
Indemnified Party is successful on the merits or otherwise, he or she need not
show that the applicable standard of conduct was met. If not successful on the
merits, any indemnification may only be made if the Indemnified Party applies to
the Company for indemnification and (i) a majority vote of a quorum of the
Board, or (ii) if a quorum is not available or even if obtainable, or if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by vote of the stockholders of the Company.
With respect to both derivative actions and third party actions, the
Indemnity Provisions also provide for the advancement of expenses, including
actual and reasonable attorneys' fees, incurred in defending or investigating
any action, suit, proceeding or claim, subject to a written affirmation by the
Indemnified Party or person requesting an advance for such Indemnified Party
that he or she has met the applicable standard of conduct and that he or she
will repay such advance if it is ultimately determined that he or she did not
meet the applicable standard of conduct.
Notwithstanding the foregoing, the Company has discretion to impose as
conditions to any of the Indemnification Provisions, such requirements as may
appear appropriate in the specific case including but not limited to: (a) that
any counsel representing the person be mutually acceptable to the Company and
the Indemnified Party, (b) that the Company has the right to assume control of
the defense of such Indemnified Party, and (c) that the Company shall be
subrogated to the extent of any payments made by way of indemnification to all
of such Indemnified Party's right of recovery, and do everything necessary to
assure such rights of subrogation to the Company.
The rights of Indemnified Parties under the Indemnity Provisions are
not exclusive of any other rights Indemnified Parties may have under the
Certificate, any agreement, vote of stockholders, vote of disinterested
directors, any liability insurance policies or otherwise. The Company currently
maintains a Directors and Officers liability insurance policy with coverage of
$10,000,000. Although the Company believes the policy and its coverage limits to
be adequate, the policy may not provide coverage in all circumstances in which
the Company's directors and officers are entitled to indemnification and may not
cover the Company's total liability to its directors and officers even in cases
where coverage is provided.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to Indemnified Parties pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such persons in connection with the securities being registered, the Company
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.
2
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
3
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ITEM 8. EXHIBITS
4.1 Non-Qualified Stock Option Agreement by and between the Company and
Mary Jo Needham dated as of October 13, 2000.(1)
4.2 Non-Qualified Stock Option Agreement by and between the Company
and Dale Maurer dated as of October 13, 2000.(1)
4.3 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of October 13, 2000.(1)
4.4 Non-Qualified Stock Option Agreement by and between the Company
and Tamara Pettit dated as of October 13, 2000.(1)
4.5 Non-Qualified Stock Option Agreement by and between the Company
and Charles McCallion dated as of October 13, 2000.(1)
4.6 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 2000 Stock Incentive Plan.(1)
4.7 Non-Qualified Stock Option Agreement by and between the Company
and James V. Stanton dated as of October 13, 2000.(1)
4.8 Non-Qualified Stock Option Agreement by and between the Company
and William D. Fugazy, Jr. dated as of October 13, 2000.(1)
4.9 Non-Qualified Stock Option Agreement by and between the Company and
Mary Jo Needham dated as of June 6, 1999.(1)
4.10 Non-Qualified Stock Option Agreement by and between the Company and
Dale Maurer dated as of June 6, 1999.(1)
4.11 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of June 6, 1999.(1)
4.12 Non-Qualified Stock Option Agreement by and between the Company and
Tamara Pettit dated as of June 6, 1999.(1)
4.13 Non-Qualified Stock Option Agreement by and between the Company
and Albert A. Forte dated as of February 21, 2000.(1)
4.14 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1999 Stock Incentive Plan.(1)
4.15 Non-Qualified Stock Option Agreement by and between the Company
and James V. Stanton dated as of October 13, 2000.(1)
4.16 Non-Qualified Stock Option Agreement by and between the Company
and William D. Fugazy, Jr. dated as of October 13, 2000.(1)
4.17 Non-Qualified Stock Option Agreement by and between the Company and
Roger Szepelak dated as of October 25, 2000.(1)
5.1 Opinion of Ruben & Aronson, LLP.(1)
10.1 2000 Stock Incentive Plan of the Company.(2)
10.2 First Amendment to 2000 Stock Incentive Plan. (1)
10.3 1999 Stock Incentive Plan of the Company.(3)
4
<PAGE>
23.1 Consent of Corbin & Wertz, Independent Public Accountants.(1)
23.2 Consent of BDO Seidman LLP, Independent Public Accountants.(1)
23.3 Consent of Ruben & Aronson, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included at page 6)
--------------------
(1) Filed herewith.
(2) Incorporated by reference to the Company's Proxy Statement dated
July 24, 2000, as filed with the Commission with respect to its
2000 Annual Meeting.
(3) Incorporated by reference to the Company's Proxy Statement dated
July 23, 1999, as filed with the Commission with respect to its
1999 Annual Meeting.
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, as amended (the "Securities Act"); (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 this Registration
Statement; and (iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
the Registration Statement; provided however, that clauses (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic
reports filed by the Registrant pursuant to Sections 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining liability under the Securities
Act, 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 in
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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at the
time shall be deemed to be in the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 or 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.
5
<PAGE>
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Chester, State of West Virginia on December 14, 2000.
MTR GAMING GROUP, INC.
By: /s/ EDSON R. ARNEAULT
----------------------------------------
Edson R. Arneault,
CHAIRMAN OF THE BOARD AND PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edson R. Arneault and Robert L. Ruben, or
either or them, jointly and severally, his true and lawful attorneys-in-fact and
agents, with full powers and substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this registration statement, and to file same with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in- fact and
agents, or their substitutes, 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 below by the following persons in the capacities and
on the dates indicated.
<TABLE>
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Signature Title Date
<S> <C> <C>
/s/ EDSON R. ARNEAULT Chairman of the Board,
-------------------------- President and Chief Executive December 14, 2000
Edson R. Arneault Officer
/s/ ROBERT A. BLATT
-------------------------- Director December 14, 2000
Robert A. Blatt
/s/ ROBERT L. RUBEN
-------------------------- Director December 14, 2000
Robert L. Ruben
/s/ JAMES V. STANTON
-------------------------- Director December 14, 2000
James V. Stanton
/s/ WILLIAM D. FUGAZY, JR.
-------------------------- Director December 14, 2000
William D. Fugazy, Jr.
/s/ MARY JO NEEDHAM
-------------------------- Principal Financial and December 14, 2000
Mary Jo Needham Accounting Officer
</TABLE>
6
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EXHIBIT INDEX
EXHIBIT
NO. DOCUMENT
4.1 Non-Qualified Stock Option Agreement by and between the Company and
Mary Jo Needham dated as of October 13, 2000.(1)
4.2 Non-Qualified Stock Option Agreement by and between the Company and
Dale Maurer dated as of October 13, 2000.(1)
4.3 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of October 13, 2000.(1)
4.4 Non-Qualified Stock Option Agreement by and between the Company and
Tamara Pettit dated as of October 13, 2000.(1)
4.5 Non-Qualified Stock Option Agreement by and between the Company and
Charles McCallion dated as of October 13, 2000.(1)
4.6 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 2000 Stock Incentive Plan.(1)
4.7 Non-Qualified Stock Option Agreement by and between the Company
and James V. Stanton dated as of October 13, 2000.(1)
4.8 Non-Qualified Stock Option Agreement by and between the Company
and William D. Fugazy, Jr. dated as of October 13, 2000.(1)
4.9 Non-Qualified Stock Option Agreement by and between the Company and
Mary Jo Needham dated as of June 6, 1999.(1)
4.10 Non-Qualified Stock Option Agreement by and between the Company and
Dale Maurer dated as of June 6, 1999.(1)
4.11 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of June 6, 1999.(1)
4.12 Non-Qualified Stock Option Agreement by and between the Company and
Tamara Pettit dated as of June 6, 1999.(1)
4.13 Non-Qualified Stock Option Agreement by and between the Company
and Albert A. Forte dated as of February 21, 2000.(1)
4.14 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1999 Stock Incentive Plan.(1)
4.15 Non-Qualified Stock Option Agreement by and between the Company
and James V. Stanton dated as of October 13, 2000.(1)
4.16 Non-Qualified Stock Option Agreement by and between the Company
and William D. Fugazy, Jr. dated as of October 13, 2000.(1)
4.17 Non-Qualified Stock Option Agreement by and between the Company and
Roger Szepelak dated as of October 25, 2000.(1)
5.1 Opinion of Ruben & Aronson, LLP.(1)
10.1 2000 Stock Incentive Plan of the Company.(2)
<PAGE>
10.2 First Amendment to 2000 Stock Incentive Plan. (1)
10.3 1999 Stock Incentive Plan of the Company.(3)
23.1 Consent of Corbin & Wertz, Independent Public Accountants.(1)
23.2 Consent of BDO Seidman, Independent Public Accountants.(1)
23.3 Consent of Ruben & Aronson, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included at page 6)
--------------------
(1) Filed herewith.
(2) Incorporated by reference to the Company's Proxy Statement dated
July 24, 2000, as filed with the Commission with respect to its
2000 Annual Meeting.
(3) Incorporated by reference to the Company's Proxy Statement dated
July 23, 1999, as filed with the Commission with respect to its
1999 Annual Meeting.
2
