As filed with the Securities and Exchange Commission on July 1, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Riviera Holdings Corporation
(Exact name of issuer as specified in its charter)
Nevada 88-0296885
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
2901 Las Vegas Boulevard South
Las Vegas, Nevada 89109
(Address of Principal Executive Offices)
RIVIERA HOLDINGS CORPORATION 2005
INCENTIVE STOCK OPTION PLAN
RIVIERA HOLDINGS CORPORATION 2005
NON-QUALIFIED STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full title of the Plans)
William L. Westerman Copy to:
2901 Las Vegas Boulevard South Richard L. Galin
Las Vegas, Nevada 89109 Gordon & Silver, Ltd.
Telephone: (702) 794-9237 3960 Howard Hughes Parkway, Ninth Floor
Las Vegas, Nevada 89109
(Name, address including zip Telephone: (702) 796-5555
code, and telephone number,
including area code, of
agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Offering Aggregate
Securities to Amount to Price Per Offering Amount of
be Registered be Registered(1) Share(2) Price(2) Registration Fee
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Common Stock,
$0.001 par value 1,150,000 shares $23.23 $26,714,500 $3,144.30
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers any and
all additional shares of the Company's common stock that may be
issuable by reason of stock splits, stock dividends, recapitalizations
or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee,
pursuant to Rule 457(c) and Rule 457(h) of the Securities Act, based on
the average of the high and low sale prices of the Company's common
stock on the American Stock Exchange on June 30, 2005.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Item 1 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Item 2 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Riviera Holdings Corporation, a Nevada corporation (the "Company"),
hereby incorporates herein by reference the following documents previously filed
by the Company with the Securities and Exchange Commission (the "SEC" or the
"Commission"):
1. the Annual Report on Form 10-K for the year ended Decmeber 31,
2004, filed with the SEC on March 25, 2005;
2. the Quarterly Report on Form 10-Q for the quarter ended March
31, 2005, filed with the SEC on May 12, 2005;
3. the Current Reports on Form 8-K filed with the SEC on February
9, 2005, February 15, 2005(2), February 16, 2005, April 20,
2005, April 26, 2005(2) and May 18, 2005(2); and
4. the description of the Company's common stock set forth in the
Registration Statement on Form 8-A (as amended), filed with
the SEC on May 10, 1996 (File No. 001-11711).
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, 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 incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed incorporated herein by reference shall be deemed modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is
incorporated or deemed incorporated herein by reference modifies or supersedes
such prior statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the validity of the shares of the
Company's common stock offered hereby are being passed upon for the Company by
Gordon & Silver, Ltd., Las Vegas, Nevada. Jeffrey A. Silver, a shareholder in
Gordon & Silver, Ltd., is a member of the Company's board of directors and the
board's Compensation Committee. As of June 30, 2005, Mr. Silver beneficially
owns 34,200 shares of the Company's common stock. Mr. Silver is eligible to
participate in the Company's 2005 Non-Qualified Stock Option Plan for
Non-Employee Directors.
Item 6. Indemnification of Directors and Officers.
Nevada law provides that Nevada corporations may include in their
articles of incorporation provisions eliminating or limiting the personal
liability of their directors and officers in shareholder actions brought to
obtain damages for alleged breaches of fiduciary duties, as long as the alleged
acts or omissions did not involve intentional misconduct, fraud, a knowing
violation of law or payment of dividends in violation of the Nevada statutes.
Nevada law also allows Nevada corporations to include in their articles of
incorporation or bylaws provisions to the effect that expenses of officers and
directors incurred in defending a civil or criminal action must be paid by the
corporation as they are incurred, subject to an undertaking on behalf of the
director or officer to repay such expenses if it is ultimately determined by a
court of competent jurisdiction that such officer or director is not entitled to
be indemnified by the corporation because he or she did not act in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation.
The respective articles of incorporation of the Company and its Nevada
subsidiaries provide that a director or officer of such company shall not be
personally liable to such company or its shareholders for damages for any breach
of fiduciary duty as a director or officer, except for liability for (a) acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law, or (b) the payment of distributions in violation of Nevada Revised Statutes
("NRS") Section 78.300. In addition, NRS Section 78.751 and Article VII of the
bylaws of each of such companies, under certain circumstances, provide for the
indemnification of the officers and directors of such company against
liabilities they may incur in such capacities. A summary of the circumstances in
which such indemnification is provided for is set forth in the following
paragraph, but such summary is qualified in its entirety by reference to Article
VII of the bylaws of such company.
In general, any director or officer of the Company or its Nevada
subsidiaries (each, an "Indemnitee") who was or is a party to, or is threatened
to be made a party to, or is otherwise involved in any threatened, pending or
completed action or suit (including, without limitation, an action, suit or
proceeding by or in the right of such company), whether civil, criminal,
administrative or investigative (a "Proceeding") by reason of the fact that the
Indemnitee is or was a director or officer of such company or is or was serving
in any capacity at the request of such company as a director, officer, employee,
agent, partner or fiduciary of, or in any other capacity for, another
corporation or any partnership, joint venture, trust or other enterprise shall
be indemnified and held harmless by such company for actions taken by the
Indemnitee and for all omissions to the full extent permitted by Nevada law
against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, taxes, penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by the Indemnitee in
connection with any Proceeding. The rights to indemnification specifically
include the right to reimbursement from such company for all reasonable costs
and expenses incurred in connection with the Proceeding and indemnification
continues as to an Indemnitee who has ceased to be a director or officer. The
board of directors may include employees and other persons as though they were
Indemnitees. The rights to indemnification are not exclusive of any other rights
that any person may have by law, agreement or otherwise.
The respective bylaws of the Company and its Nevada subsidiaries
provide that such company may purchase and maintain insurance or make other
financial arrangements on behalf of any person who otherwise qualifies as an
Indemnitee under the foregoing provisions. Other financial arrangements to
assist the Indemnitee are also permitted, such as the creation of a trust fund,
the establishment of a program of self-insurance, the securing of such company's
obligation of indemnification by granting a security interest or other lien on
any assets (including cash) of such company and the establishment of a letter of
credit, guarantee or surety.
The respective bylaws and articles of incorporation of the Company's
Colorado subsidiaries provide that those companies shall, to the full extent
permitted by the Colorado Business Corporation Act ("CBCA"), indemnify all of
their directors and officers. Sections 7-109-101 to 7-109-110 of the CBCA
provide in part that a corporation shall have the power to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceedings (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 the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceedings if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceedings, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any threatened, pending or completed action or suit by or in the right of the
corporation, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the shareholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard
of conduct. The indemnitee is presumed to be entitled to indemnification and the
corporation has the burden of proof to overcome that presumption. Where an
officer or a director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or her against
the expenses which such officer or director actually or reasonably incurred.
Additionally, the respective articles of incorporation and bylaws of
the Company's Colorado subsidiaries provide for mandatory indemnification of
directors to the fullest extent permitted by Colorado law. This provision does
not eliminate the liability of a director for (a) a breach of the director's
duty of loyalty to the corporation or its shareholders; (b) acts or omissions by
the director not in good faith or which involve intentional misconduct or a
knowing violation of law; (c) liability arising under Section 7-108-403 of the
CBCA (relating to distributions to shareholders in violation of the CBCA); or
(d) any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Description
Number
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4.1* Articles of Incorporation of the Company (see Exhibit
3 to Quarterly Report on Form 10-Q filed with the
Commission on November 10, 2003, Commission File No.
0-21430)
4.2* Bylaws of the Company (see Exhibit 3.2 to Registration
Statement on Form S-4 filed with the Commission on
September 10, 1997, Commission File No. 0-21430)
4.3* 2005 Incentive Stock Option Plan (see Exhibit A (in
Exhibit 99) to Schedule 14A filed with the
Commission on April 22, 2005, Commission File No.
0-21430)
4.4* 2005 Non-Qualified Stock Option Plan for Non-Employee
Directors (see Exhibit B (in Exhibit 99) to Schedule 14A
filed with the Commission on April 22, 2005, Commission
File No. 0-21430)
5.1 Legal Opinion of Gordon & Silver, Ltd.
23.1 Consent of Gordon & Silver, Ltd. (included in legal
opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature pages filed
herewith)
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* These are incorporated herein by reference as exhibits hereto.
Following the description of each such exhibit is a reference to it as
it appeared in a specified document previously filed with the
Commission, to which there have been no amendments or changes, unless
otherwise indicated.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed with
or furnished to the Commission by the
registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant hereby certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Las Vegas, State of Nevada, on July 1, 2005.
RIVIERA HOLDINGS CORPORATION
By: /s/ WILLIAM L. WESTERMAN
William L. Westerman
Chairman and Chief Executive Officer
We, the undersigned directors and officers of Riviera Holdings
Corporation, hereby constitute and appoint Duane R. Krohn and Tullio J.
Marchionne, or either of them, our true and lawful attorneys-in-fact and agents,
with full power to sign for us or any of us in our names and in any and all
capacities, any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents required in connection therewith, and with full power to do any
and all acts and things in our names and in any and all capacities, which such
attorneys-in-fact and agents, or either of them, may deem necessary or advisable
to enable Riviera Holdings Corporation to comply with the Securities Act of
1933, and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement; and we hereby ratify
and confirm all that such attorneys-in-fact and agents, or either of them, do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ WILLIAM L. WESTERMAN Director, Chairman and July 1, 2005
----------------------------- Chief Executive Officer
(principal executive officer)
William L. Westerman
/s/ DUANE R. KROHN Treasurer and Chief Financial July 1, 2005
----------------------------- Officer, and Executive Vice
Duane R. Krohn President of Finance of Riviera
Operating Corporation
(principlal financial officer and
principal accounting officer)
/s/ PAUL A. HARVEY Director July 1, 2005
-----------------------------
Paul A. Harvey
/s/ VINCENT L. DIVITO Director July 1, 2005
-----------------------------
Vincent L. DiVito
EXHIBIT INDEX
Exhibit Description
Number
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4.1* Articles of Incorporation of the Company (see Exhibit 3 to
Quarterly Report on Form 10-Q filed with the Commission on
November 10, 2003, Commission File No. 0-21430)
4.2* Bylaws of the Company (see Exhibit 3.2 to Registration Statement
on Form S-4 filed with the Commission on September 10, 1997,
Commission File No. 0-21430)
4.3* 2005 Incentive Stock Option Plan (see Exhibit A (in Exhibit 99)
to Schedule 14A filed with the Commission on April 22, 2005,
Commission File No. 0-21430)
4.4* 2005 Non-Qualified Stock Option Plan for Non-Employee Directors
(see Exhibit B (in Exhibit 99) to Schedule 14A filed with the
Commission on April 22, 2005, Commission File No. 0-21430)
5.1 Legal Opinion of Gordon & Silver, Ltd.
23.1 Consent of Gordon & Silver, Ltd. (included in legal opinion
filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature pages filed herewith)
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* These are incorporated herein by reference as exhibits hereto.
Following the description of each such exhibit is a reference to it as
it appeared in a specified document previously filed with the
Commission, to which there have been no amendments or changes, unless
otherwise indicated.