AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 26, 1999.
Registration No. 333-____________
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AZTAR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 86-0636534
(State of incorporation) (IRS Employer Identification No.)
2390 EAST CAMELBACK ROAD, SUITE 400
PHOENIX, ARIZONA 85016
(Address of principal executive offices, including Zip Code)
AZTAR CORPORATION 1999 EMPLOYEE STOCK OPTION AND INCENTIVE PLAN
(Full title of the Plan)
ROBERT M. HADDOCK
2390 EAST CAMELBACK ROAD, SUITE 400
PHOENIX, ARIZONA 85016
(602) 381-4100
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NY 10022
Attention: ERIC L. COCHRAN, ESQ.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Aggregate Offering Registration
per Share(2) Price(2) Fee (3)
=======================================================================================================
Common stock, $0.01
<S> <C> <C> <C> <C>
par value 4,000,000 shares $7.125 $28,500,000.00 $7,923.00
=======================================================================================================
</TABLE>
(1) We are registering 4,000,000 shares pursuant to the Aztar Corporation
1999 Employee Stock Option and Incentive Plan. Pursuant to Rule
416(c) under the Securities Act of 1933, as amended (the "Securities
Act"), this registration statement shall also cover any additional
shares of common stock which become issuable under the Aztar
Corporation 1999 Employee Stock Option and Incentive Plan pursuant to
its antidilution provisions.
(2) Pursuant to Rule 457(c) and 457(h) of the Securities Act, the
proposed maximum offering price and registration fee are based on the
high and low selling prices per share of Aztar Corporation's common
stock on May 24, 1999, as reported on the New York Stock Exchange
Composite Tape.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: 0.0278% of $28,500,000.00, the
Proposed Maximum Aggregate Offering Price of the
shares of common stock registered hereby.
=============================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8
is omitted from this filing in accordance with the provisions of Rule 428
under the Securities Act and the introductory note to Part 1 of Form S-8.
The documents containing the information specified in Part I will be
delivered to the participants in the plan covered by this registration
statement as required by Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" the information we file with them, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part
of this registration statement, and information that we file later with the
SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), until
such time as this registration statement is no longer in effect.
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) Our Quarterly Report on Form 10-Q for the quarter ended April
1, 1999 and our Current Reports on Form 8-K filed on April 19,
1997 and April 28, 1997; and
(c) The description of our common stock contained in our
Registration Statement No. 333-05213 on Form S-3 filed with the
SEC on June 5, 1996, as amended on July 2, 1996, as further
amended on July 15, 1996, and as further amended on July 24,
1996.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
Aztar Corporation
Corporate Communications
2390 East Camelback Road, Suite 400
Phoenix, Arizona 85016 - 3452
Telephone: (602) 381-4100
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation to indemnify any person who
was or is a party to or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such person acted in good faith and in a manner such 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 such person's conduct was unlawful.
A Delaware corporation may indemnify directors, officers, employees
and other agents of such corporation in an action by or in the right of the
corporation under the same conditions, except that no indemnification shall
be made if such person is adjudged to be liable to the corporation. Where a
director, officer, employee or agent of the corporation is successful on
the merits or otherwise in the defense of any action, suit or proceeding
referred to in this Item 6 or in defense of any claim, issue or matter
herein, the corporation must indemnify such person against the expenses
(including attorney's fees) which he or she actually and reasonably
incurred in connection therewith.
Both our By-Laws and the Certificate of Incorporation require us to
indemnify each of our directors and officers to the fullest extent
permitted by law, subject to certain exceptions, in connection with any
actual or threatened action or proceeding arising out of his or her service
to us or to other organizations at our request.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of
Incorporation also contains a provision eliminating the personal liability
of a director to Aztar Corporation or our shareholders for monetary damages
for breach of fiduciary duty as a director, subject to certain exceptions.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
- ---------- ---------
4.1 Aztar Corporation 1999 Employee Stock Option and Incentive Plan
(incorporated by reference from Exhibit A to the Company's
definitive proxy statement filed on March 29, 1999 for the
Annual Meeting of Stockholders held on May 6, 1999)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent public
accountants, with respect to the financial statements of Aztar
Corporation
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in the Opinion filed as Exhibit 5.1)
24.1 Power of Attorney (included on the signature page)
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;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this registration statement;
provided, however, that clauses (1)(i) and (1)(ii) shall not
apply if the information required to be included in a
post-effective amendment by those clauses is contained in
periodic reports filed by Aztar Corporation pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference into this registration statement;
(2) that for the purpose of determining any 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 the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the Aztar Corporation 1999 Employee Stock
Option and Incentive Plan.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Aztar
Corporation's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference into 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 may be permitted to directors, officers or controlling
persons of Aztar Corporation pursuant to the indemnification provisions
summarized in Item 6 or otherwise, Aztar Corporation has been advised that,
in the opinion of the SEC, 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 Aztar Corporation of expenses incurred or paid by a
director, officer, or controlling person of Aztar Corporation 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, Aztar Corporation 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 the City of Phoenix, State of
Arizona on this 26th day of May 1999.
AZTAR CORPORATION
By: /s/ Paul E. Rubeli
-----------------------------------
Paul E. Rubeli
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Aztar Corporation,
hereby severally constitute and appoint Paul E. Rubeli and Robert M.
Haddock, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, all pre-effective and post-effective amendments
to this registration statement, and generally to do all things in our names
and on our behalf in such capacities to enable Aztar Corporation to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Name/Signature Title Date
- -------------- ----- ----
/s/ Paul E. Rubeli Chairman of the Board, May 26, 1999
- --------------------------- President and Chief
Paul E. Rubeli Executive Officer
/s/ Robert M. Haddock Director, Executive Vice May 19, 1999
- --------------------------- President and Chief
Robert M. Haddock Financial Officer
/s/ Meridith P. Sipek Controller May 19, 1999
- ---------------------------
Meridith P. Sipek
/s/ John B. Bohle Director May 18, 1999
- ---------------------------
John B. Bohle
/s/ Gordon M. Burns Director May 19, 1999
- ---------------------------
Gordon M. Burns
/s/ Edward M. Carson Director May 19, 1999
- ---------------------------
Edward M. Carson
/s/ Linda C. Faiss Director May 19, 1999
- ---------------------------
Linda C. Faiss
/s/ James L. Kunkel Director May 19, 1999
- ---------------------------
James L. Kunkel
/s/ Robert S. Rosow Director May 19, 1999
- ---------------------------
Robert S. Rosow
/s/ Richard Snell Director May 19, 1999
- ---------------------------
Richard Snell
/s/ Terence W. Thomas Director May 18, 1999
- ---------------------------
Terence W. Thomas
EXHIBIT INDEX
Exhibit
Number
(Referenced to
Item 601(b) of
Regulation S-K) Exhibit
- ---------------- -------
4.1 Aztar Corporation 1999 Employee Stock Option and Incentive
Plan (incorporated by reference from Exhibit A to the
Company's definitive proxy statement filed on March 29,
1999 for the Annual Meeting of Stockholders held on May 6,
1999)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent public
accountants, with respect to the financial statements of
Aztar Corporation
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in the Opinion filed as Exhibit 5.1)
24.1 Power of Attorney (included on the signature page)
EXHIBIT 5.1
May 26, 1999
Aztar Corporation
2390 East Camelback Road
Suite 400
Phoenix, Arizona 85106
Re: Aztar Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Aztar Corporation, a
Delaware corporation (the "Company"), in connection with the registration
of 4,000,000 shares of the Company's common stock, par value $0.01 per
share ("Common Stock"), issuable pursuant to the 1999 Employee Stock Option
Plan (the "Plan"). The Plan provides for the grant of stock options
("Options") to named executive officers and key employees of the Company
with respect to an aggregate of 4,000,000 shares of Common Stock.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-8 as filed with the Securities and
Exchange Commission (the "Commission") on the date hereof under the Act
(the "Registration Statement"); (ii) a specimen certificate representing
the Common Stock; (iii) the Restated Certificate of Incorporation of the
Company, as presently in effect; (iv) the Second Amended and Restated
By-laws of the Company, as presently in effect; (v) the Plan; (vi) certain
resolutions of the Board of Directors of the Company and the Compensation
Committee relating to the Plan and related matters; (vii) the proxy
statement on Schedule 14A as filed with the Commission on March 29, 1999
and mailed to the stockholders of the Company in connection with the 1999
Annual Meeting of Stockholders relating to, among other things, the
adoption of the Plan; and (viii) the Inspector of Election Report relating
to the adoption of the Plan by the Company's stockholders at the Annual
Meeting of Stockholders held on May 6, 1999. We have also examined
originals or copies, certified or otherwise identified to our satisfaction,
of such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company
and others, and such other documents, certificates and records as we have
deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed or to be
executed by parties other than the Company, we have assumed that such
parties had or will have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the validity and binding
effect thereof. As to any facts material to the opinions expressed herein
which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives
of the Company and others. We have assumed that the certificates
representing the Common Stock will be manually signed by an authorized
officer of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar and will conform to the
specimen thereof examined by us. We have also assumed that each award
agreement setting forth the terms of each grant of options or other awards
under the Plan will be consistent with the Plan and will be duly authorized
and validly executed and delivered by the parties thereto, and that the
consideration received by the Company for the Common Stock delivered
pursuant to the Plan will be in an amount at least equal to the par value
of such Common Stock.
Members of our firm are admitted to the bar in the State of
Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that the shares of Common Stock have been duly authorized for issuance by
the Company and, when such shares of Common Stock are issued upon exercise
of Options granted pursuant to the actions of the Board of Directors and
under the terms and conditions of the Plan, such shares of Common Stock
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 3, 1999 relating to the
consolidated financial statements of Aztar Corporation and the financial
statements of Tropicana Enterprises, which appear in Aztar Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the incorporation by reference of our report dated February 3,
1999 relating to the financial statement schedule of Aztar Corporation,
which appears in such Annual Report.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Phoenix, Arizona
May 26, 1999
