Securities Registration: Employee Benefit Plan (s-8)
October 19 2021 - 5:01PM
Edgar (US Regulatory)
As filed with the U.S.
Securities and Exchange Commission on October 19, 2021
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PENN NATIONAL GAMING, INC.
(Exact name of registrant as specified in its
charter)
Pennsylvania
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23-2234473
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification Number)
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825 Berkshire Blvd., Suite 200
Wyomissing, Pennsylvania 19610
(610) 373-2400
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Score Media and Gaming Inc.
Second Amended and Restated Stock Option and Restricted Stock Unit Plan
(Full title of the plan)
Harper Ko
Executive Vice President, Chief Legal Officer
and Secretary
Penn National Gaming, Inc.
825 Berkshire Blvd., Suite 200
Wyomissing, Pennsylvania 19610
(610) 378-8214
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies To:
Daniel A. Neff
Zachary S. Podolsky
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
Indicate by check mark whether Registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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Emerging growth company
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¨
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If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title
of securities to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price per share(4)
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Proposed
maximum
aggregate offering price(4)
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Amount
of
registration fee
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Common
stock, $0.01 par value per share:
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783,707
shares(2)
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$78.32
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$61,379,933
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$5,690
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Common
stock, $0.01 par value per share:
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266,886
shares(3)
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$78.32
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$20,902,512
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$1,938
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(1) Pursuant to Rule 416(a) under the Securities Act
of 1933, as amended (the “Securities Act”), this registration statement shall also cover an indeterminate number of additional
shares of common stock, par value $0.01 per share (“Common Stock”) of Penn National Gaming, Inc. (“Penn National”
or the “Company”), which may become issuable under the equity plan being registered pursuant to this registration statement
by reason of stock dividends, stock splits, recapitalizations or any other similar transaction effected without the receipt of consideration
leading to an increase in the number of outstanding shares.
(2) Represents
shares of Penn National Common Stock issuable upon the exercise or settlement, as applicable, of equity awards issued pursuant to the
Score Media and Gaming Inc. Second Amended and Restated Stock Option and Restricted Stock Unit Plan
(the “Score Media Plan”) which equity awards were converted into equity awards in respect of Penn National Common
Stock pursuant to an arrangement agreement, dated as of August 4, 2021 (as amended, the “Arrangement Agreement”), by
and among Penn National, 1317774 B.C. Ltd., a British Columbia corporation and an indirect subsidiary of Penn National, and Score Media
and Gaming Inc., a British Columbia corporation.
(3) Represents shares of Penn National Common Stock issuable
pursuant to equity awards to be granted under the Score Media Plan pursuant to the share reserve under the Score Media Plan, which was
converted into a share reserve relating to Penn National Common Stock in connection with the transactions contemplated by the Arrangement
Agreement.
(4) Estimated
in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration
fee. The maximum offering price per share and the maximum aggregate offering price are based on the average of $79.81 (high)
and $76.83 (low) sale price of Penn National’s Common Stock as reported on the NASDAQ Global Select Market on October 15,
2021.
EXPLANATORY NOTE
This registration statement on Form S-8
is filed by Penn National in connection with the consummation on October 19, 2021 of the transactions contemplated by, and in accordance
with the terms and conditions of, an arrangement agreement, dated as of August 4, 2021 (as amended, the “Arrangement Agreement”),
by and among Penn National, 1317774 B.C. Ltd., a British Columbia corporation and an indirect subsidiary of Penn National (“Purchaser”),
and Score Media and Gaming Inc., a British Columbia corporation (“theScore”), pursuant to which Purchaser, among other things,
acquired all of the Class A Subordinate Voting Shares (“theScore Class A Shares”) and Special Voting Shares (together
with theScore Class A Shares, the “Shares”) of theScore, other than Shares held by the Company or its subsidiaries.
The transactions contemplated by the Arrangement Agreement were implemented by way of a court-approved plan of arrangement (the “Plan
of Arrangement”) under Division 5 of Part 9 of the Business Corporations Act (British Columbia), as amended.
Pursuant to the Arrangement Agreement and Plan
of Arrangement, on October 19, 2021, (a) each outstanding and unvested stock option of theScore held by an employee of theScore,
was converted into an option of the Company (a “Company Option”) to purchase a number of shares of Company Common Stock,
determined in accordance with and pursuant to the terms and conditions of the Arrangement Agreement and the Plan of Arrangement, and
(b) each outstanding award of restricted share units of theScore held by an employee of theScore, converted into a restricted stock
unit award in respect of a number of shares of Company Common Stock (a “Company RSU”) determined in accordance with and pursuant
to the terms and conditions of the Arrangement Agreement and the Plan of Arrangement.
Upon the consummation of the transactions contemplated
by the Arrangement Agreement and the Plan of Arrangement, the Company assumed the Score Media Plan and the remaining share reserve thereunder,
which was converted into a share reserve relating to shares of Company Common Stock based on the equity award exchange ratio applicable
to outstanding equity awards of theScore under the terms of the Arrangement Agreement and the Plan of Arrangement.
This registration statement registers shares of
Company Common Stock which may be issuable pursuant to the Score Media Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information to be specified
in Item 1 and Item 2 of Part I of this registration statement is omitted from this filing in accordance with the provisions of Rule 428
under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information to be specified
in Part I will be delivered to the holders as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation
of Documents by Reference.
The following documents filed by the Company with the U.S. Securities
and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated herein by reference:
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·
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our
Current Reports on Form 8-K filed on January 4,
2021, April 13,
2021, June 8,
2021, June 11,
2021, June 21,
2021, July 1,
2021, August 5,
2021 (accepted at 4:55 p.m.), August 26,
2021, September 20,
2021 and October 19, 2021 (other than the portions of those documents furnished and not deemed
to be filed); and
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All documents subsequently filed by the Company
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 then remaining unsold, shall be deemed to be incorporated
by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained
herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration
statement.
Notwithstanding the foregoing, no information
is incorporated by reference in this registration statement where such information under applicable forms and regulations of the Commission
is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to the liabilities of that section,
unless the report or filing containing such information indicates that the information therein is to be considered “filed”
under the Exchange Act or is to be incorporated by reference in this registration statement.
Item 4. Description
of Securities.
Not applicable.
Item 5. Interests
of Named Experts and Counsel
Not applicable.
Item 6. Indemnification
of Directors and Officers.
Under Sections 1741 and 1742 of the Pennsylvania
Business Corporation Law (the “PBCL”), a business corporation has 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 or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that such person is or was a director or officer of the corporation, or is or was serving at
the request of the corporation as a director or officer of another corporation or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action
or proceeding, if such person acted in good faith in a manner he or she reasonably believed to be in, or not opposed to, the best interests
of the corporation, and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of a threatened, pending or completed action or proceeding by or in the right of the corporation, such indemnification only
covers expenses (including attorneys’ fees) actually and reasonably incurred in defense and settlement of such action and excludes
judgments and amounts paid in settlement with respect to such action or proceeding, and no indemnification can be made for expenses if
such person has been adjudged to be liable to the corporation unless, and only to the extent that, a court determines upon application
that, despite the adjudication of liability but in view of all the circumstances, such person is fairly and reasonably entitled to indemnity
for the expenses that the court deems proper.
In addition, Section 1744 of the PBCL provides
that, unless ordered by a court, any indemnification referred to above shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification is proper in the circumstances because the indemnitee has met the applicable standard
of conduct. Such determination shall be made:
(1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to the proceeding;
(2) if such a quorum is not obtainable, or
if obtainable and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion;
or
(3) by the shareholders.
Notwithstanding the above, Section 1743 of
the PBCL provides that, to the extent that a director or officer of a business corporation has been successful on the merits or otherwise
in defense of a proceeding referred to above, or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith.
Further, Section 1745 of the PBCL provides
that expenses (including attorneys' fees) incurred by an officer or director of a business corporation in defending any such proceeding
may be paid by the corporation in advance of the final disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to be indemnified by the corporation.
Also, Section 1746 of the PBCL provides
that the indemnification and advancement of expenses provided by, or granted pursuant to, the foregoing provisions is not exclusive of
any other rights to which a person seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, and that indemnification may be granted under any bylaw, agreement, vote of shareholders or directors or otherwise
for any action taken or any failure to take any action whether or not the corporation would have the power to indemnify the person under
any other provision of law and whether or not the indemnified liability arises or arose from any action by or in the right of the corporation;
provided, however, that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification
is determined by a court to have constituted willful misconduct or recklessness.
Section 8.01 of the Penn National bylaws
provide for indemnification, to the fullest extent permitted by Pennsylvania law, for directors, officers and certain employees against
all liability, loss and expense (including attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably
incurred by such person by reason of the fact that such person is or was a director or officer of Penn National, or is or was serving
at the request of Penn National as a director, officer, employee, agent, fiduciary or trustee of another corporation or of a partnership,
joint venture, trust, employee benefit plan or other enterprise or entity. The Penn National bylaws also require the advancement of expenses.
Section 1747 of the PBCL permits a Pennsylvania
business corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director or officer of another corporation or other enterprise, against any
liability asserted against such person and incurred by such individual in any such capacity, or arising out of his or her status as such,
whether or not the corporation or other enterprise would have the power to indemnify the person against such liability under the provisions
described above.
Section 8.07 of the Penn National bylaws
provides that, among other things, it may purchase and maintain insurance to secure its indemnification provisions. Penn National maintains
directors’ and officers’ liability insurance covering its directors and officers with respect to liabilities, including liabilities
under the Securities Act, which they may incur in connection with their serving as such. Under this insurance, Penn National may receive
reimbursement for amounts as to which the directors and officers are indemnified by Penn National under the bylaw indemnification provisions
described above. Such insurance also provides certain additional coverage for the directors and officers against certain liabilities
even though such liabilities may not be covered by the bylaw indemnification provisions described above.
As permitted by Section 1713(a) of
the PBCL, Section 4.14 of the Penn National bylaws provide that no director shall be personally liable, as such, for monetary damages
for any action taken, or failure to take any action, unless (i) the director has breached or failed to perform the duties of his
or her office under the articles, bylaws or the PBCL; and (ii) the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness. Section 1713(b) of the PBCL states that this exculpation from liability does not apply to the responsibility
or liability of a director pursuant to any criminal statute or the liability of a director for the payment of taxes pursuant to federal,
state or local law. It is uncertain whether this provision will control with respect to liabilities imposed upon directors by federal
law, including federal securities laws. Section 1715(d) of the PBCL creates a presumption, subject to exceptions, that a director
acted in the best interests of the corporation. Section 1712 of the PBCL, in defining the standard of care a director owes to a
corporation, provides that a director stands in a fiduciary relation to the corporation and must perform his or her duties as a director
or as a member of any committee of the board of directors in good faith, in a manner he or she reasonably believes to be in the best
interests of the corporation and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence
would use under similar circumstances.
The foregoing summaries are subject to the complete
text of the PBCL and the Penn National articles of incorporation and bylaws and are qualified in their entirety by reference thereto.
Item 7. Exemption
from Registration Claimed.
Not applicable.
Item 8. Exhibits.
* Filed
herewith.
Item 9. Undertakings
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1.
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The undersigned registrant hereby undertakes:
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(a)
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To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the “Securities Act”);
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(ii)
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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; and
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(iii)
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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;
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provided,
however, that Paragraphs (1)(a)(i) and (1)(a)(ii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
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(b)
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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.
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(c)
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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.
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2.
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The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in 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.
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3.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the 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.
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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 Wyomissing, Commonwealth of Pennsylvania, on this 19th day of October, 2021.
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PENN NATIONAL GAMING, INC.
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Name:
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Harper Ko
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Title:
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Executive Vice President, Chief Legal Officer and Secretary
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POWER OF ATTORNEY
BE IT KNOWN BY THESE PRESENT, that each person
whose signature appears below constitutes and appoints Jay A. Snowden and Harper Ko and each of them, his or her true and lawful attorney(s)-in-fact
and agent(s), with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any or all amendments to this registration statement and to file the same, with all exhibits and schedules thereto,
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney(s)-in-fact and
agent(s) full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney(s)-in-fact
and agent(s), or their substitute(s), may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signatures
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Title
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Date
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/s/ Jay A. Snowden
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President,
Chief Executive Officer and Director (Principal Executive Officer)
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October 19,
2021
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Jay A. Snowden
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/s/ Felicia
Hendrix
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Executive
Vice President and Chief Financial Officer (Principal Financial Officer)
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October 19,
2021
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Felicia Hendrix
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/s/ Christine
LaBombard
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Senior
Vice President and Chief Accounting Officer (Principal Accounting Officer)
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October 19,
2021
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Christine LaBombard
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/s/ David A.
Handler
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Director,
Chairman of the Board
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October 19,
2021
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David A. Handler
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/s/ Vimla Black-Gupta
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Director
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October 19,
2021
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Vimla Black-Gupta
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Signatures
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Title
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Date
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/s/
John M. Jacquemin
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Director
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October 19, 2021
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John M. Jacquemin
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/s/
Marla Kaplowitz
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Director
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October 19, 2021
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Marla Kaplowitz
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/s/
Ronald J. Naples
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Director
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October 19, 2021
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Ronald J. Naples
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/s/
Saul V. Reibstein
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Director
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October 19, 2021
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Saul V. Reibstein
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/s/
Jane Scaccetti
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Director
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October 19, 2021
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Jane Scaccetti
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/s/
Barbara Z. Shattuck Kohn
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Director
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October 19, 2021
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Barbara Z. Shattuck Kohn
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