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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 24)*
PINNACLE ENTERTAINMENT, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
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723456 10 9
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(CUSIP Number)
JENNINGS J. NEWCOM
DAVIS GRAHAM & STUBBS LLP
1550 17TH STREET, SUITE 500
DENVER, CO 80202
(303) 892-9400
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
SEPTEMBER 20, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and
five copies of this schedule, including all exhibits. See ss. 240.13d-7
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
PERSONS WHO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN
THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A
CURRENTLY VALID OMB CONTROL NUMBER.
SEC 1746 (03-00)
Schedule 13D
CUSIP No. 723456 10 9 Pinnacle Entertainment, Inc.
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
R.D. HUBBARD
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) | |
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
N/A
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED | |
PURSUANT TO ITEMS 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0*
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 2,322,699
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PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,322,699
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | |
(See Instructions)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.0%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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*The shares are currently held in a voting trust as described in Item 4.
2
Schedule 13D
CUSIP No. 723456 10 9 Pinnacle Entertainment, Inc.
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This Statement relates to the Schedule 13D, as amended (the "Schedule
13D"), filed by Mr. R.D. Hubbard with regard to beneficial ownership of common
stock, par value $.10 per share (the "Common Stock"), of Pinnacle Entertainment,
Inc. (the "Company"), and constitutes Amendment No. 24 thereto. Capitalized
terms used herein and not otherwise defined have the meaning set forth in
Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is hereby amended by adding the following:
In connection with a settlement with the Indiana Gaming Commission, Mr.
Hubbard has entered into a voting trust agreement (the "Voting Trust Agreement")
with respect to the shares of Common Stock in the Company beneficially owned by
him. The Voting Trust Agreement, attached as Exhibit A, is effective as of
September 20, 2002 and was entered into by Mr. Hubbard and the R.D. and Joan
Dale Hubbard Foundation (whose shares are beneficially owned by Mr. Hubbard)
(collectively, the "Stockholders"), the Company and Wells Fargo Bank Texas, N.A.
(the "Trustee"). The Agreement provides that the Stockholders will deposit all
shares of Common Stock beneficially owned by them or acquired by them in the
future (the "Trust Shares") into the voting trust (the "Trust").
The Stockholders will retain the right to sell or otherwise dispose of any
of the Trust Shares; however any shares sold or transferred to an affiliate of
the Stockholders will remain subject to the Trust. The Trustee shall have the
right to vote the shares as provided in the Voting Trust Agreement. With respect
to the election of directors, the Trustee is required to vote the Trust Shares
for each director or nominee for director in proportion to the votes cast by the
nonaffiliated stockholders of the Company. On all other matters, the Trustee
shall vote the Trust Shares in the same proportion in favor of, in opposition
to, or in abstention or as broker non-votes with respect to, such matters as the
votes cast by the nonaffiliated stockholders of the Company. The Company's
obligations under the Voting Trust Agreement are limited to using its best
efforts to ensure that the Trust Shares are counted as being present for
purposes of determining a quorum for any stockholder action and timely informing
the Trustee as to the calculation of votes in any matter to be voted on by the
Company's stockholders.
The Trust will terminate on the earlier of: (i) the dissolution or
termination of the Company; (ii) the release, in one or more transactions, of
all the Trust Shares from the Trust in accordance with the Voting Trust
Agreement; (iii) the death of Mr. Hubbard; or (iv) the tenth (10th) anniversary
of the Voting Trust Agreement, except as otherwise required by a third party
regulatory authority.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Item 5(a) is hereby amended by adding the information contained in
Items 11 and 13 of the cover page.
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(b) Item 5(b) is hereby amended by adding the information contained in
Items 7 through 10 of the cover page.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Item 6 is hereby amended by adding the description of the Voting Trust
Agreement contained in Item 4.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS
Exhibit A. Voting Trust Agreement, dated September 20, 2002, by and among
Randall Dee Hubbard, the R.D. and Joan Dale Hubbard Foundation,
the Company and Wells Fargo Texas, N.A.
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Schedule 13D
CUSIP No. 723456 10 9 Pinnacle Entertainment, Inc.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 1, 2002
/s/ R.D. HUBBARD
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R.D. Hubbard
5
EXHIBIT INDEX
EXHIBIT DESCRIPTION
Exhibit A Voting Trust Agreement, dated September 20, 2002, by and
among Randall Dee Hubbard, the R.D. and Joan Dale Hubbard
Foundation, the Company and Wells Fargo Texas, N.A.
EXHIBIT A
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement"), is dated as of September 20,
2002, by and among Randall Dee Hubbard ("Hubbard") and the R.D. and Joan Dale
Hubbard Foundation, a Texas nonprofit organization (each, including Hubbard,
a "Stockholder" and, collectively, the "Stockholders"), Pinnacle
Entertainment, Inc., a Delaware corporation (the "Company") and Wells Fargo
Bank Texas, N.A. (the "Trustee").
RECITALS
A. The Stockholders directly own an aggregate of 2,019,820 shares of
common stock ("Common Stock") of the Company (the "Shares").
B. The Shares constitute approximately eight percent (8%) of the
outstanding capital stock of the Company as of the date hereof.
C. The Company, the Trustee and the Stockholders have agreed to enter into
this Agreement to create the Voting Trust (the "Trust").
D. In accordance with the provisions of this Agreement, the Stockholders have
agreed to deposit, or cause to be deposited, into the Trust the Shares.
Additionally, Hubbard has agreed to deposit, or cause to be deposited, into the
Trust the 20,879 shares of Common Stock, if any, that may be released to Hubbard
under the terms of the Company's Deferred Directors Account which are not
simultaneously sold by Hubbard (the "Additional Shares").
E. The Stockholders desire to empower the Trustee to vote all of the shares
of the Company's capital stock that become subject to the terms and conditions
of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the agreements
contained herein, it is hereby agreed:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires: (i)
capitalized terms defined in the introduction and Recitals to this Agreement
have the meanings assigned to them there; (ii) capitalized terms defined in
other Sections of this Agreement have the meanings assigned to them there; (iii)
all capitalized terms defined in this Agreement include the plural as well as
the singular and vice versa, when the context requires; and (iv) where
appropriate, all references to the masculine in this Agreement include both the
feminine and the neuter, and vice versa, when the context requires.
"control" (including the terms "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of any entity, whether through the
ownership of voting securities, by contract, or otherwise.
"Hubbard Affiliate" means: (i) a Hubbard Family Member or (ii) an entity
that controls, is controlled by, or is under common control with Hubbard.
Notwithstanding the foregoing, for purposes of this Agreement, following the
deposit of the Shares or any Additional Shares, the following shall not be
deemed to be a Hubbard Affiliate: (a) the Company, any subsidiary of the
Company, or any joint venture in which the Company has an interest; and (b) the
Trustee.
"Hubbard Family Member" means any grandchild, child or spouse of Hubbard,
or any spouse of a child or grandchild.
"Transfer Agent" means the Company's transfer agent, Mellon Investor
Services LLC or its successor.
"Trust Beneficiaries" means the Stockholders and their respective
successors and assigns.
"Trust Shares" means the Shares and the Additional Shares.
"Trustee" has the meaning set forth in the introductory paragraph of this
Agreement and shall include any successor Trustee, each of whom shall be a bank,
savings institution, trust company or similar entity with at least $1 billion in
assets or funds under management.
2. APPOINTMENT OF TRUSTEE; NUMBER OF TRUSTEES. The Stockholders hereby appoint
the Trustee to serve as Trustee of the Trust, and the Trustee hereby accepts
such appointment and agrees to act as Trustee of the Trust in accordance with
the terms and conditions of this Agreement. For so long as this Agreement shall
remain in effect, there shall be one Trustee under this Agreement and, if at any
time there shall be no Trustee, then the appointment of a successor Trustee
shall be made in accordance with the procedures set forth in Section 7(b)
hereof.
3. DEPOSIT OF SHARES AND ISSUANCE OF TRUST CERTIFICATES.
(a) DEPOSIT OF SHARES. Concurrent with the execution of this Agreement, each
of the Stockholders will endorse in blank and assign and deliver to the Trustee
all certificates for their respective Shares and shall do all things necessary
for the transfer of the Shares to the Trust on the books of the Company.
(b) DEPOSIT OF ADDITIONAL SHARES. For so long as this Agreement remains in
effect, Hubbard agrees to deliver to the Trustee certificates for all Additional
Shares hereafter
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acquired by Hubbard immediately upon becoming the owner thereof, duly endorsed
for transfer or accompanied by duly executed instruments of transfer.
(c) DELIVERY OF TRUST CERTIFICATES. Promptly upon receipt of any Trust Shares,
the Trustee shall: (i) request the Transfer Agent, and take such other steps
reasonably required, to cause such Trust Shares to be cancelled, transferred and
registered in the stock records of the Company in the name of the Trustee (or a
nominee name designated by the Trustee); (ii) request the Transfer Agent, and
take such other steps reasonably required, to cause the new share certificates
to bear a legend stating that the securities evidenced thereby are subject to
the terms of this Agreement; and (iii) issue and deliver to such Trust
Beneficiary a Voting Trust Certificate (a "Trust Certificate") in respect of the
number and type of Trust Shares transferred to and held of record by the Trustee
for the benefit of such Trust Beneficiary under this Agreement, in the form of
Exhibit A hereto (except that the Trustee shall affix to any such Trust
Certificate any restrictive legend borne by the certificate for the Trust Shares
for which such Trust Certificate is exchanged).
(d) RELEASE OF SHARES FROM TRUST. In the event a Stockholder sells or
transfers any of the Trust Shares to a third party (other than to a Stockholder
or a Hubbard Affiliate), then, upon the closing of such transaction, the Trust
Shares so transferred shall be released from this Trust. In the event any Trust
Shares are so released, the Trustee shall promptly (but not later than the date
required to settle such transaction on the New York Stock Exchange) request the
Transfer Agent, and take such other steps reasonably required, to cause such
Trust Shares to be cancelled, transferred and registered in the stock records of
the Company in the name of such third party (or a nominee name designated by
such Stockholder).
4. TRUSTEE'S POWERS AND DUTIES.
(a) VOTING POWERS. For so long as this Agreement remains in effect, the
Trustee shall have the right to exercise all voting rights and powers in respect
of the Trust Shares, and to take part in, consent to, or oppose, any corporate
or stockholders' action of any kind whatsoever.
(b) VOTING PROCEDURE. The Trustee must vote the Trust Shares as follows:
(i) if the matter concerned is the election of directors then the Trustee
shall vote the whole number of Trust Shares for each director (or nominee for
director) for which such Trust Shares are eligible to vote by multiplying the
total number of votes held by the Trust by a fraction, the numerator of which is
the number of votes cast in respect of shares of the Company other than the
Trust Shares (the "Nonaffiliated Votes") for such person and the denominator of
which is the total number of Nonaffiliated Votes represented by all shares
casting any votes in the election of such directors; and
(ii) on all other matters the Trustee shall at all times vote all of the
Trust Shares for the matter, against the matter, or shall abstain or cause to
have the same effect
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as broker non-votes, in the same proportion in favor of, in opposition to, or in
abstention or as broker non-votes with respect to, such matter as the
Nonaffiliated Votes are cast for, against, or in abstention or are broker
non-votes with respect to, such matter.
(c) If any calculation of votes under Section 4(b) would require a fractional
vote, the Trustee shall vote the next lower number of whole shares.
(d) The Company shall use all reasonable commercial efforts to ensure, with
respect to the Trust Shares, that all of the Trust Shares are counted as being
present for the purposes of any quorum required for any stockholder action.
(e) To enable the Trustee to vote the Trust Shares in accordance with this
Section 4, the Company shall, or shall cause the Transfer Agent to, inform the
Trustee in writing not later than the close of business on the business day
prior to any vote as to the calculation of votes in any matter to be voted on by
the Company's shareholders. Concurrent with the execution of this Agreement, the
Company shall provide the Transfer Agent a copy of this Agreement.
5. SALES OF TRUST SHARES. The Trustee shall have no authority to sell or
otherwise dispose of or to pledge, encumber or hypothecate, any of the Trust
Shares. The Trust Beneficiaries shall have the right, in their sole discretion,
to sell or otherwise dispose of any of the Trust Shares. The sale, assignment,
transfer, pledge, hypothecation or other encumbrance of the Trust Shares is
subject to the restrictions and conditions imposed by applicable securities and
other laws, including Indiana law, and any contractual restrictions to which any
Trust Beneficiary or the Trust Shares may be subject. Any such transfer to a
Hubbard Affiliate shall be subject to the condition precedent that such Hubbard
Affiliate agrees in writing to be bound by this Agreement solely with respect to
the Trust Shares.
6. DIVIDENDS AND DISTRIBUTIONS ON THE TRUST SHARES. Upon the declaration of
any dividends or the payment of any other distribution of the Company with
respect to Trust Shares held for the benefit of the Trust Beneficiaries (other
than pro rata distributions of additional voting shares of the Company, which
shall be deposited into the Trust), the Trustee shall distribute all such
dividends and distributions received by the Trustee to the Trust Beneficiaries.
In the event of the dissolution, liquidation or winding up of the Company during
the term of this Agreement in such manner as to entitle the Trust Beneficiaries
to liquidating dividends in respect of the Trust Shares, the Trustee shall
distribute all such liquidating dividends received by the Trustee with respect
to the Trust Shares to be distributed to the Trust Beneficiaries.
7. THE TRUSTEE.
(a) TRUSTEE AS STOCKHOLDER OR AFFILIATE. Any Trustee and any entity of which
such Trustee may be a trustee, stockholder, agent, partner, affiliate or member
may be an investor in the Company or any Hubbard Affiliate and may have a
business relationship with the Company, any Stockholder or any Hubbard
Affiliate.
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(b) SUCCESSOR TRUSTEES.
(i) A Trustee may resign by giving notice of resignation to the Trust
Beneficiaries. Any successor Trustee shall enjoy all the rights, powers,
interests, and immunities of the original Trustee, and the title to the Trust
Shares of any Trustee who may resign or be removed or become unable to act
shall, upon such resignation or removal or inability, vest in the successor
Trustee.
(ii) In the event of the removal, resignation, or inability to act of the
Trustee (a "Trustee Vacancy"), the appointment of a qualified successor Trustee
shall be made by a majority in interest of the Trust Beneficiaries.
(c) Notwithstanding any change in the Trustee, the Trust Certificates may be:
(i) voted; and/or (ii) endorsed and transferred, by any successor Trustee with
the same effect as if voted, endorsed and transferred by the former Trustee. The
Trustee is authorized and empowered to cause any further transfer of said Trust
Shares and Trust Certificates to be made which may be necessary through the
occurrence of any change of person acting as Trustee hereunder.
(d) RELATIONSHIP OF PARTIES. The Trust created by this Agreement is not
intended to be, and shall not be deemed to be, and shall not be treated as a
general partnership, limited partnership, joint venture, corporation, or joint
stock company or association. The relationship of the Trust Beneficiaries to the
Trustee shall be solely that of stockholder and beneficiary of the Trust created
by this Agreement and their rights shall be limited to those conferred upon it
by this Agreement.
(e) CONSULTATION WITH OUTSIDE ADVISORS; TRANSFER AGENT. In its capacity as
Trustee, in order to carry out the terms of the Trust, the Trustee may consult
with legal counsel, which may be counsel to the Company or any of its affiliates
or any of its or its affiliates' officers, directors or partners. The Trustee
may also contact the Company's Transfer Agent with respect to the Trust Shares
or the Trustee's duties and obligations hereunder as follows:
American Stock Transfer & Trust Co.
59 Maiden Lane
New York, NY 10038
Attn: Paula Caroppoli
Tel: (718) 921-8275
Fax: (718) 921-8331
or at such other address as the Company or the Transfer Agent may designate
in writing.
(f) LIABILITY OF TRUSTEE. In voting on all matters which may come before any
meeting of stockholders of the Company, the Trustee shall vote the Trust Shares
in the manner prescribed by this Agreement, and it is understood that the
Trustee shall not incur
A-5
responsibility by reason of any error of judgment or of law or by any matter or
thing done or omitted under this Agreement, except for its own individual gross
negligence or willful misconduct. No Trustee shall be liable in any event for
acts or defaults of any other Trustee or for acts or defaults of any employee,
agent, proxy, or attorney-in-fact of any other Trustee. The Trustee shall always
be protected and free from liability in acting upon any notice, request,
consent, instruction, certificate, declaration, telefax, guarantee, affidavit,
or other paper or document or signature reasonably believed by them to be
genuine and to have been signed by the proper party or parties or by the party
or parties purporting to have signed the same.
(g) TRUSTEE'S INDEMNITY. Hubbard shall indemnify, defend and hold harmless the
Trustee against any and all losses, damages, liabilities, obligations, claims,
demands, judgments, settlements, governmental investigations, costs and expenses
of any nature whatsoever, including the reasonable fees and expenses of
attorneys, accountants and consultants (collectively, "Damages"), incurred in
connection with or arising from the performance of its duties under this
Agreement (except for the Trustee's gross negligence or willful misconduct).
Such indemnification shall be paid as incurred and on demand, subject to an
undertaking by the Trustee to repay if it is ultimately determined that it is
not entitled to such indemnification. In the event any Trust Beneficiary shall
request the Trustee to bring an action on his behalf, then such Trust
Beneficiary shall pay in advance all the expense of prosecuting such action and
shall indemnify, defend and hold harmless the Trustee against all Damages
incurred in connection with such action. The Trustee shall have no obligation to
commence or proceed with such suit unless it is satisfied that all necessary
monies have been paid in advance for this purpose. The indemnity provisions
contained herein shall survive the termination or assignment of this Agreement.
8. RESTRICTIONS ON TRANSFER OF TRUST CERTIFICATES. The Trust Certificates
shall be transferable only as provided in the Trust Certificates and this
Agreement. Subject to compliance with applicable securities and other laws,
including Indiana law, and any contractual restrictions to which any Trust
Beneficiary or the Trust Certificates may be subject, each Trust Beneficiary
shall have the right, in their sole discretion, to sell or otherwise dispose of
or to pledge, encumber or hypothecate any of the Trust Certificates issued
hereunder; provided, however, that any such transfer to a Hubbard Affiliate
shall be subject to the condition precedent at the time of transfer that such
Hubbard Affiliate agrees in writing to be bound by this Agreement. All sales or
transfers shall be recorded in the Certificate Book (as hereinafter defined) and
any proper sale or transfer made of any Trust Certificate shall vest in the
purchaser or transferee all rights of the transferor and shall subject the
purchaser or transferee to the same limitations as those imposed on the
transferor by the terms of the Trust Certificate so transferred, and by this
Agreement. Upon any such transfer, following execution of an agreement to be
bound by this Agreement, if required hereby, by a purchaser or transferee and
upon surrender to the Trustee of any Trust Certificate sold or transferred, duly
endorsed for transfer, the Trustee shall deliver a new Trust Certificate or
Trust Certificates to the purchaser or transferee for the beneficial interest in
the number and type of the Trust Shares represented by the Trust Certificate so
sold or transferred. The Trustee shall not be
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required to recognize any sale or transfer of a Trust Certificate not made in
accordance with the provisions hereof unless the person or persons claiming such
ownership shall have produced indicia of title satisfactory to the Trustee, and
shall have deposited with the Trustee indemnity satisfactory to it, and shall
have executed an agreement to be bound by this Agreement, if required hereby. As
a matter of clarity, this Section shall not prohibit or otherwise limit any
Trust Beneficiary's right to sell or transfer Trust Shares to a third party in
accordance with Section 5 of this Agreement.
9. CONTINUANCE AND TERMINATION OF TRUST.
(a) TERM AND TERMINATION. This Agreement shall become effective as of the date
hereof and shall terminate on the earlier to occur of: (i) the dissolution or
liquidation of the Company; (ii) the release, in one or more transactions, of
all of the Trust Shares from the Trust in accordance with Section 3(d) of this
Agreement; (iii) the death of Hubbard; or (iv) the tenth (10th) anniversary of
this Agreement; provided, however, that notwithstanding the foregoing, this
Agreement shall not terminate if its continued existence is required by a third
party regulatory authority. Except as otherwise provided in this Agreement, the
Trust created by this Agreement is hereby expressly declared to be irrevocable.
(b) CONSOLIDATION, EXCHANGE, RECAPITALIZATION. In the event of a
consolidation, share-for-share exchange, recapitalization or other
reorganization involving the Company, this Agreement shall be effective and
shall remain in force for its full term, substituting, where appropriate, for
the shares issued in such consolidation, exchange, recapitalization or other
reorganization, new Trust Shares and Trust Certificates.
(c) ACTIONS FOLLOWING TERMINATION.
(i) As soon as practicable after the termination of this Agreement, the
Trustee shall by formal assignment of the Trust Shares cause the Company to
deliver to the Trust Beneficiaries share certificates or securities representing
the number of Trust Shares (together with any other property distributed in
respect of such Trust Shares and not yet delivered to the relevant Trust
Beneficiary), upon the surrender of such Trust Certificates properly endorsed.
(ii) If any Trust Beneficiary cannot be located or fails or refuses to
surrender Trust Certificates in exchange for Trust Shares and/or other property
as aforesaid, the Trustee may in its discretion deliver said Trust Shares and/or
other property to the Company for the benefit of the person or persons entitled
thereto. Upon any such delivery the Trustee shall be fully acquitted and
discharged with respect to the delivery of said Trust Shares and/or other
property.
10. RECORD DATE. The Trustee shall use as the record date for the
determination of any person or entity entitled to receive payment of any
dividend or other distribution, or any allotment of rights, or to exercise
rights in respect of any other lawful action, or to vote on any matter, the
record date so fixed by the Company and supplied by the
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Company or the Transfer Agent with respect to the Trust Shares. When a record
date is so fixed, the stockholder of record on that date is entitled to receive
the dividend, distribution, or allotment of rights, or to vote, or to exercise
of the rights, as the case may be, notwithstanding any transfer of the Trust
Certificates after the record date. The record date for determining Trust
Beneficiaries for any purpose other than as set forth in this Section shall be
at the close of business on the sixtieth (60th) day prior to the effective date
of such other action.
11. INSPECTION OF RECORDS. The Trustee shall keep at 1445 Ross Avenue, Dallas,
Texas, or such other address at which the Trustee may designate, correct books
of account of all business and transactions conducted hereunder, and a book to
be known as the "Certificate Book" containing the names of each Trust
Beneficiary, showing their places of residence, the number and type of shares
represented by the Trust Certificates held by them, and the date they became the
owners thereof. This Agreement shall be open for inspection by any Trust
Beneficiary, any third party regulatory authority pursuant to an agreement with
a Trust Beneficiary, any stockholder of the Company, or the agent of either,
upon the same terms as the record of stockholders of the Company is open to
inspection by stockholders.
12. LOST OR STOLEN TRUST CERTIFICATES. If a Trust Certificate shall be lost,
stolen, mutilated, or destroyed, the Trustee, in its discretion, may issue a
duplicate of such Trust Certificate upon receipt of evidence of such fact
satisfactory to the Trustee, and upon receipt of an indemnity satisfactory to
the Trustee, and upon receipt of the existing Trust Certificate, if mutilated.
13. MISCELLANEOUS.
(a) FILING OF AGREEMENT. The Company shall cause to be filed a copy of this
Agreement, and every amendment or supplement hereto, in the registered office of
the Company in the State of Delaware and at the Executive Office, which
Agreement shall be open to the inspection by any Trust Beneficiary or any
stockholder of the Company during business hours of the Company.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall bind the Trustee, the Company
and the Trust Beneficiaries hereunder and each and all of the heirs, executors,
administrators, personal representatives, successors, assigns and permitted
transferees thereof, and shall inure to the benefit of the Trustee, the Company
and the Trust Beneficiaries and their respective heirs, executors,
administrators, personal representatives, successors, assigns and permitted
transferees.
(c) NOTICES. Unless otherwise expressly provided herein, all notices,
requests, demands, instructions, documents and other communications to be given
hereunder by any party to another shall be in writing, shall be sent to the
address/fax number set forth below (provided that any party may at any time
change its address for notice or other such information by giving written notice
thereof in accordance with this Section), and shall be deemed to be duly given
upon the earliest of: (i) hand delivery; (ii) the first
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business day after sending by reputable overnight delivery service for next-day
delivery; (iii) the third business day after sending by first class United
States mail, postage prepaid; (iv) the time of successful facsimile transmission
(or in the event the time of receipt of the fax in the city where the fax is
received is not during regular business hours on a business day, then at the
customary hour for the opening of business on the next business day); or (v) the
date actually received by the other party:
If to Stockholders or c/o R. D. Hubbard
Trust Beneficiaries: 73-405 El Paseo, Suite 32-D
Palm Desert, CA 92260
If to Trustee: Wells Fargo Bank Texas, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, TX 75202
Attn: Kathleen Wagner
Tel: (214) 777-4076
Fax: (214) 777-4086
If to the Company: Pinnacle Entertainment, Inc.
330 N. Brand Street, Suite 1100
Glendale, CA 91203
(d) COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one instrument.
(e) ENFORCEABILITY. If in any judicial proceedings, a court shall refuse to
enforce any of the provisions of this Agreement, then such unenforceable
provision shall be deemed modified or limited so as to effectuate, to the
maximum extent possible, the parties' expressed intent, and, if no such
modification or limitation could render it enforceable, it shall be eliminated
from this Agreement, and, in any event, the remaining provisions of this
Agreement shall remain in full force and effect. Each of the parties hereto
shall take any and all actions necessary for the enforceability of this
Agreement under Delaware law, including without limitation any necessary filings
or actions required by Section 218 of the Delaware General Corporation Law.
(f) ENTIRE AGREEMENT. This Agreement is the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous negotiations, understandings, arrangements and agreements. This
Agreement has been fully negotiated by the parties and that accordingly it shall
be construed "evenly" and not for or against any party.
(g) COMPENSATION OF TRUSTEE; PAYMENT OF COSTS. The Trustee shall be entitled
to fair and reasonable compensation for its services as Trustee, to be paid by
Hubbard, in accordance with a fee schedule provided by the Trustee. The Trustee
agrees that the
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Stockholders and the Trust Beneficiaries other than Hubbard shall have no
obligation to pay to the Trustee any amount whatsoever as fees or in respect to
the Trustee's costs or expenses related to this Agreement, except as provided in
Sections 7(f) and 13(k). The Trustee will look solely to Hubbard for
reimbursement of any amounts incurred or expended by it in connection with its
duties under this Agreement, except as provided in Sections 7(f) and 13(k), and
expressly waives any rights which it might otherwise have to charge the trust
corpus for any costs, fees or expenses related to this Agreement, or to withhold
any amounts from or set off any amounts against the shares received by it in
trust or any distributions thereon.
(h) AMENDMENT AND MODIFICATION. This Agreement may not be amended except in
writing and signed by the Trust Beneficiaries, the Company and the Trustee;
provided, however, this Agreement may not be amended if such amendment would be
contrary to an agreement with a third party regulatory authority to the extent
applicable to the Trust Beneficiaries. Notwithstanding the foregoing, the
substitution of a Trustee hereunder, the substitution, addition or subtraction
of one or more Trust Beneficiaries hereunder, or the transfer or issuance of
additional Trust Shares hereunder after the original date of execution of this
Agreement shall not be considered an amendment or modification.
(i) GOVERNING LAW. This Agreement shall be governed by the internal laws
of the State of Delaware without regard to its conflict of laws principles.
(j) SECTION 218. This Agreement is intended to create a voting trust pursuant
to and subject to Section 218 of the Delaware General Corporation Law. If for
any reason such voting trust is determined to be invalid or unenforceable, this
Agreement and the relationship of the parties hereunder shall be deemed to be
and shall be reconstituted as a voting agreement under Section 218(c) of the
Delaware General Corporation Law, and all provisions of this Agreement shall
apply to the maximum extent possible to effectuate the intention of the parties
that the substantive provisions hereof shall govern the voting of Trust Shares
by or for the parties hereto.
(k) EQUITABLE REMEDIES. Each of the parties hereby acknowledges and agrees
that the legal remedies available, in the event the covenants and agreements
made in this Agreement are violated, would be inadequate and that any party
shall be entitled, without posting any bond or other security, to temporary,
preliminary and permanent injunctive relief, specific performance and other
equitable remedies in the event of such a violation, in addition to any other
remedies which such party may have at law or in equity.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered by their proper and duly authorized representatives as of the day
and year first above written.
WELLS FARGO BANK TEXAS, N.A., as Trustee
By: /S/ KATHLEEN WAGNER
--------------------------------------------
Title:
-----------------------------------------
"STOCKHOLDERS"
/S/ R.D. HUBBARD
------------------------------------------
Randall Dee Hubbard
R.D. AND JOAN DALE HUBBARD FOUNDATION
By: /S/ EDWARD A. BURGER
--------------------------------------------
Title: CHIEF FINANCIAL OFFICER
-----------------------------------------
AGREED TO:
"COMPANY"
PINNACLE ENTERTAINMENT, INC.
By: /S/ JOHN A. GODFREY
--------------------------------------------
Title: SECRETARY
-----------------------------------------
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SPOUSAL CONSENT TO AGREEMENT
I am the spouse of Randall Dee Hubbard. I acknowledge that I have read the
foregoing Voting Trust Agreement dated as of September 20, 2002 ("Agreement")
and that I know and understand its contents. I am aware that by the provisions
of the Agreement my spouse agrees to contribute his respective interest in
certain property as described in the Agreement, including any interest I may
have in them, whether as community property or otherwise, on the conditions
specified in the Agreement. I hereby consent to the contribution and approve of
the provisions of the Agreement.
I ACKNOWLEDGE THAT I HAVE BEEN ADVISED TO HAVE THE AGREEMENT REVIEWED BY
INDEPENDENT LEGAL COUNSEL AND TO CONSULT WITH SUCH COUNSEL REGARDING THE
PROVISIONS AND RESTRICTIONS OF THE AGREEMENT AND THEIR IMPACT ON ME. I
ACKNOWLEDGE THAT I HAVE HAD FULL AND ADEQUATE OPPORTUNITY TO HAVE THE AGREEMENT
REVIEWED BY INDEPENDENT LEGAL COUNSEL AND TO DISCUSS THIS AGREEMENT WITH SUCH
COUNSEL.
Dated: September 20, 2002
/S/ JOAN DALE HUBBARD
------------------------------------------
Joan Dale Hubbard
Exhibit A
PINNACLE ENTERTAINMENT, INC.
A Delaware Corporation
Voting Trust Certificate
Certificate No. ________ [____] shares of Common Stock
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER ENCUMBRANCE OF
THIS VOTING TRUST CERTIFICATE OR THE COMMON STOCK REFERRED TO HEREIN IS SUBJECT
TO THE RESTRICTIONS, TERMS AND CONDITIONS SET FORTH IN THE VOTING TRUST
AGREEMENT DESCRIBED IN THIS CERTIFICATE AND PURSUANT TO WHICH THIS CERTIFICATE
IS ISSUED, INCLUDING THOSE IMPOSED BY APPLICABLE INDIANA LAW. THIS CERTIFICATE
AND SUCH COMMON STOCK ARE SUBJECT TO AND MAY BE TRANSFERRED OR ENCUMBERED ONLY
IN ACCORDANCE WITH SUCH AGREEMENT, A DUPLICATE OF WHICH IS ON FILE WITH THE
SECRETARY OF THE CORPORATION.
This certifies that [____________] (or its predecessor in interest) has
deposited for transfer in trust to the Trustee of the Hubbard/Pinnacle
Entertainment, Inc. Voting Trust (the "Trust") [____________] shares (the "Trust
Shares") of the Common Stock, par value $0.10 per share, of Pinnacle
Entertainment, Inc., a Delaware corporation (the "Company"), under a Voting
Trust Agreement, dated as of September 20, 2002 (the "Voting Trust Agreement"),
by and among Randall Dee Hubbard, the R.D. and Joan Dale Hubbard Foundation, a
Texas nonprofit organization, the Company and Wells Fargo Bank Texas, N.A., as
Trustee (the "Trustee," which term includes any successors). This certificate
and the interest represented hereby may be transferred only if permitted under
the terms of the Voting Trust Agreement and is transferable only on the books of
the Trustee upon the execution of the Voting Trust Agreement by such transferee
and the presentation and surrender of this certificate duly endorsed for
transfer. The holder of this certificate takes the same subject to all the terms
and conditions of the Voting Trust Agreement, is entitled to the rights and
benefits thereof and is subject to the obligations thereof. A copy of the Voting
Trust Agreement may be obtained from the undersigned Trustee.
Prior to the termination of the Voting Trust Agreement, the Trustee shall
possess and be entitled to exercise, in the manner and to the extent provided in
the Voting Trust Agreement, all of the rights of every kind of the holder of
this certificate, including the right to vote and to take part in, or to consent
to, any corporate or stockholders' action, it being expressly stipulated that no
right to vote, or take part in, or to consent to, any corporate or stockholders'
action, shall pass to the registered holder by, or under, this certificate.
This certificate is not transferable except as permitted by the Voting Trust
Agreement, and is not valid unless signed by the Trustee. The holder hereof, by
accepting this certificate, manifests its consent that the undersigned Trustee
may treat the registered holder hereof as the true owner of this certificate for
all purposes.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be signed this
___ day of ________ 200_.
TRUSTEE OF THE
PINNACLE ENTERTAINMENT, INC.,
VOTING TRUST
WELLS FARGO BANK TEXAS, N.A., as Trustee
By:______________________________________
Title:___________________________________
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