As filed with the Securities and Exchange Commission on December 6, 2002
Registration No. 33-18278
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 12
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MANDALAY RESORT GROUP*
(Exact name of issuer as specified in its charter)
Nevada 88-0121916
(State of incorporation) (I.R.S. Employer Identification No.)
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
(702) 632-6700
(Address of principal executive offices, zip code and telephone number)
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MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING AND INVESTMENT PLAN
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Yvette Landau, General Counsel
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
(702) 632-6700
(Name, address and telephone number of agent for service)
Copy to:
Howell J. Reeves, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street--22nd Floor
Philadelphia, Pennsylvania 19103-2097
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* Effective June 18, 1999, Circus Circus Enterprises, Inc. amended its
Articles of Incorporation to change its name to Mandalay Resort Group.
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PART I
A prospectus setting forth the information required by Part I of Form S-8
will be sent or given to plan participants as specified by Rule 428(b)(l)(i).
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Mandalay Resort Group
(which filed such documents under its previous corporate name "Circus Circus
Enterprises, Inc. until it changed its corporate name on June 18, 1999) and the
Mandalay Resort Group Employees' Profit Sharing and Investment Plan, formerly
the Circus Circus Employees' Profit Sharing and Investment Plan (the "Plan") are
incorporated by reference in this registration statement:
(a) Amendment No. 1 on Form 10-K/A to the Annual Report of Mandalay Resort
Group on Form 10-K for the year ended January 31, 2001, filed for the purpose of
including the financial statements of Elgin Riverboat Resort-Riverboat Casino
(a 50% owned joint venture) for the year ended December 31, 2001;
(b) the Annual Report of Mandalay Resort Group on Form 10-K for the fiscal
year ended January 31, 2002;
(c) the Quarterly Reports of Mandalay Resort Group on Form 10-Q for the
fiscal quarters ended April 30, 2002 and July 31, 2002, respectively;
(d) the Current Reports of Mandalay Resort Group on Form 8-K dated
April 22, 2002; May 14, 2002 and September 9, 2002;
(e) the description of Mandalay Resort Group'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;
(f) the description of Mandalay Resort Group'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;
(g) the Plan's Annual Report on Form 11-K for the year ended December 31,
2001 and Amendment No. 1 thereto on Form 11-K/A dated June 28, 2002;
(h) the Plan's Current Report on Form 8-K dated May 14, 2002; and
(i) all documents subsequently filed by Mandalay Resort Group or the Plan
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 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.
Item 6. Indemnification of Directors and Officers.
Section 78.7502 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, 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 and only to the extent that a court of
competent jurisdiction determines that in view of all
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the circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
In accordance with Nevada Revised Statutes 78.037, Article XI of Mandalay
Resort Group's Restated Articles of Incorporation provides that no director or
officer of Mandalay Resort Group shall be personally liable to Mandalay Resort
Group 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 Mandalay Resort Group's Restated Bylaws provides
for mandatory indemnification of directors and officers to the fullest extent
now or hereafter permitted by law.
Mandalay Resort Group maintains liability insurance 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 Mandalay Resort Group all covered losses
for which Mandalay Resort Group 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 generally
covers liabilities arising under the federal securities laws other than
specified exclusions such as any payment for a loss arising out of a deliberate
criminal or deliberate fraudulent act by the insured.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
3(i)(a) Restated Articles of Incorporation of Mandalay Resort Group as of July
15, 1988 and Certificate of Amendment thereto, dated June 29, 1989
(Incorporated by reference to Exhibit 3(a) to the Annual Report of
Mandalay Resort Group on Form 10-K for the fiscal year ended
January 31, 1991).
3(i)(b) Certificate of Amendment of the Restated Articles of Incorporation
(Incorporated by reference to Exhibit 3(i) to Mandalay Resort Group's
Current Report on Form 8-K dated June 18, 1999).
3(i)(c) Certificate of Division of Shares into Smaller Denominations, dated
June 20, 1991 (Incorporated by reference to Exhibit 3(b) to Mandalay
Resort Group's Annual Report on Form 10-K for the fiscal year ended
January 31, 1992).
3(i)(d) Certificate of Division of Shares into Smaller Denominations, dated
June 22, 1993 (Incorporated by reference to Exhibit 3(i) to Mandalay
Resort Group's Current Report on Form 8-K dated July 21, 1993).
3(ii) Restated Bylaws of Mandalay Resort Group (Incorporated by reference to
Exhibit 3(ii) to Mandalay Resort Group's Annual Report on Form 10-K
for the fiscal year ended January 31, 1999).
4(a) Rights Agreement, dated as of July 14, 1994, between Mandalay Resort
Group and First Chicago Trust Company of New York (Incorporated by
reference to Exhibit 4 to Mandalay Resort Group's Current Report on
Form 8-K dated August 15, 1994).
4(b) Amendment to Rights Agreement, effective as of April 16, 1996, between
Mandalay Resort Group and First Chicago Trust Company of New York
(Incorporated by reference to Exhibit 4(a) to Mandalay Resort Group's
Quarterly Report on Form 10-Q for the period ended July 31, 1996).
4(c) Group Annuity Contract No. GA70867, effective as of November 1, 1985
and related letters dated November 15, 1985 and December 4, 1985--
Incorporated by reference to Exhibit 4(c) to Mandalay Resort Group's
Registration Statement on Form S-8 (No. 33-1459).
4(d) Thirteenth Amendment and Restatement of the Plan.*
4(e) Fourteenth Amendment, dated November 21, 2002, to the Plan
(Incorporated by reference to Exhibit 10(j) to Mandalay Resort Group's
Annual Report on Form 10-K for the fiscal year ended January 31,
2001).
4(f) Fifteenth Amendment, dated November 29, 2001, to the Plan
(Incorporated by reference to Exhibit 10.11 to Mandalay Resort Group's
Annual Report on Form 10-K for the fiscal year ended January 31, 2002).
4(g) Sixteenth Amendment to the Mandalay Resort Group Employees Profit
Sharing and Investment Plan.
4(h) Ninth Amendment and Restatement of the Mandalay Resort Group
Employees' Profit Sharing and Investment Trust.*
5(a) Opinion of Schreck, Jones, Bernhard, Woloson & Godfrey, Chartered,
Las Vegas, Nevada.*
5(b) Internal Revenue Service determination letter, dated April 28,
1987 (Incorporated by reference to Exhibit 5(b) to Mandalay Resort
Group's Registration Statement on Form S-8 (No. 33-1459)).
5(c) Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis,
P.A. Tampa, Florida, dated November 21, 2002.
5(d) Internal Revenue Service determination letter, dated May 23, 1995.*
5(e) Internal Revenue Service determination letter, dated July 22, 1997.*
23(a) Consent of Schreck, Jones, Bernhard, Woloson & Godfrey, Chartered.
Reference is made to Exhibit 5(a) hereto.
23(b) Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A.
Reference is made to Exhibit 5(c) hereto.
23(c) Consent of Arthur Andersen LLP**
23(d) Consent of Deloitte & Touche LLP
23(e) Consent of PricewaterhouseCoopers LLP
24 Power of Attorney.*
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* Previously filed as an exhibit to this Registration Statement.
** A currently dated consent from Arthur Andersen LLP has been omitted in
reliance on Rule 437a under the Securities Act of 1933.
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Item 9. Undertakings.
The undersigned registrants hereby undertake:
(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 and 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
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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.
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 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 3rd day of December, 2002.
Mandalay Resort Group
By /s/ Michael S. Ensign
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Michael S. Ensign, Chairman of the
Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Michael S. Ensign Chairman of the Board, Chief December 3, 2002
-------------------------- Executive Officer and Chief
Michael S. Ensign Operating Officer (Principal
Executive Officer)
/s/ William A. Richardson Vice Chairman of the Board December 3, 2002
--------------------------
William A. Richardson
/s/ Glenn Schaeffer President, Chief Financial December 3, 2002
-------------------------- Officer, Treasurer and Director
Glenn Schaeffer (Principal Financial Officer)
/s/ Les Martin Vice President and Chief December 3, 2002
------------------------- Accounting Officer (Principal
Les Martin Accounting Officer)
* Director December 3, 2002
-------------------------
William E. Bannen
* Director December 3, 2002
-------------------------
Arthur H. Bilger
* Director December 3, 2002
-------------------------
Rose McKinney-James
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Signature Title Date
* Director December 3, 2002
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Michael D. McKee
* Director December 3, 2002
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Donna B. More
* By /s/ Glenn Schaeffer
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Glenn Schaeffer
Attorney-in-Fact
The Plan.Pursuant to the requirements of the Securities Act of 1933, the
Plan 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 3rd day of December, 2002.
Mandalay Employees' Profit Sharing
And Investment Plan
By Mandalay Resort Group
Plan Administrator
By /s/ Michael S. Ensign
---------------------------------
Michael S. Ensign, Chairman of
the Board and Chief Executive
Officer
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Exhibit Index
Exhibit No. Exhibit Description
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3(i)(a) Restated Articles of Incorporation of Mandalay Resort Group as
of July 15, 1988 and Certificate of Amendment thereto, dated
June 29, 1989 (Incorporated by reference to Exhibit 3(a) to the
Annual Report of Mandalay Resort Group on Form 10-K for the
fiscal year ended January 31, 1991).
3(i)(b) Certificate of Amendment of the Restated Articles of
Incorporation (Incorporated by reference to Exhibit 3(i) to
Mandalay Resort Group's Current Report on Form 8-K dated June
18, 1999).
3(i)(c) Certificate of Division of Shares into Smaller Denominations,
dated June 20, 1991 (Incorporated by reference to Exhibit 3(b)
to Mandalay Resort Group's Annual Report on Form 10-K for the
fiscal year ended January 31, 1992).
3(i)(d) Certificate of Division of Shares into Smaller Denominations,
dated June 22, 1993 (Incorporated by reference to Exhibit 3(i)
to Mandalay Resort Group's Current Report on Form 8-K dated July
21, 1993).
3(ii) Restated Bylaws of Mandalay Resort Group (Incorporated by
reference to Exhibit 3(ii) to Mandalay Resort Group's Annual
Report on Form 10-K for the fiscal year ended January 31, 1999).
4(a) Rights Agreement, dated as of July 14, 1994, between Mandalay
Resort Group and First Chicago Trust Company of New York
(Incorporated by reference to Exhibit 4 to Mandalay Resort
Group's Current Report on Form 8-K dated August 15, 1994).
4(b) Amendment to Rights Agreement, effective as of April 16, 1996,
between Mandalay Resort Group and First Chicago Trust Company of
New York (Incorporated by reference to Exhibit 4(a) to Mandalay
Resort Group's Quarterly Report on Form 10-Q for the period
ended July 31, 1996).
4(c) Group Annuity Contract No. GA70867, effective as of November 1,
1985 and related letters dated November 15, 1985 and December 4,
1985-- Incorporated by reference to Exhibit 4(c) to Mandalay
Resort Group's Registration Statement on Form S-8 (No. 33-1459).
4(d) Thirteenth Amendment and Restatement of the Plan.*
4(e) Fourteenth Amendment, dated November 21, 2002, to the Plan
(Incorporated by reference to Exhibit 10(j) to Mandalay Resort
Group's Annual Report on Form 10-K for the fiscal year ended
January 31, 2001).
4(f) Fifteenth Amendment, dated November 29, 2001, to the Plan
(Incorporated by reference to Exhibit 10.11 to Mandalay Resort
Group's Annual Report on Form 10-K for the fiscal year ended
January 31, 2002).
4(g) Sixteenth Amendment to the Mandalay Resort Group Employees
Profit Sharing and Investment Plan.
4(h) Ninth Amendment and Restatement of the Mandalay Resort Group
Employees' Profit Sharing and Investment Trust.*
5(a) Opinion of Schreck, Jones, Bernhard, Woloson & Godfrey,
Chartered, Las Vegas, Nevada.*
5(b) Internal Revenue Service determination letter, dated April 28,
1987 (Incorporated by reference to Exhibit 5(b) to Mandalay
Resort Group's Registration Statement on Form S-8 (No.
33-1459)).
5(c) Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, P.A. Tampa, Florida, dated November 21, 2002.
5(d) Internal Revenue Service determination letter, dated May 23,
1995.*
5(e) Internal Revenue Service determination letter, dated July 22,
1997.*
23(a) Consent of Schreck, Jones, Bernhard, Woloson & Godfrey,
Chartered. Reference is made to Exhibit 5(a) hereto.
23(b) Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, P.A. Reference is made to Exhibit 5(c) hereto.
23(c) Consent of Arthur Andersen LLP**
23(d) Consent of Deloitte & Touche LLP
23(e) Consent of PricewaterhouseCoopers LLP
24 Power of Attorney.*
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* Previously filed as an exhibit to this Registration Statement.
** A currently dated consent from Arthur Andersen LLP has been omitted in
reliance on Rule 437a under the Securities Act of 1933.