Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
The Company's management, with the participation of the Company's Chief Executive Officer ("CEO") and Chief Financial Officer ("CFO"), has evaluated the effectiveness of the Company's disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this annual report. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can only provide reasonable assurance of achieving the desired control objectives and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on such evaluation, the Company's CEO and CFO have concluded that, as of the period covered by this annual report, the Company's disclosure controls and procedures were effective, at the reasonable assurance level, in recording, processing, summarizing and reporting, on a timely basis, information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act and were effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including the Company's CEO and CFO, as appropriate to allow timely decisions regarding required disclosure.
Management's Report on Internal Control Over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Management assessed the effectiveness of the Company's internal control over financial reporting as of December 31, 2020. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission ("COSO") in Internal Control-Integrated Framework (2013). Based on our assessment, management believes that, as of December 31, 2020, our internal control over financial reporting was effective based on those criteria.
Management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of recently acquired BetBull Limited, which are included in the 2020 consolidated financial statements of the Company and constituted less than 2% of total assets (goodwill constituted 1% of total assets) as of December 31, 2020, and less than 1% of each of operating revenues and net loss, for the year then ended.
The effectiveness of our internal control over financial reporting as of December 31, 2020 has been audited by Ernst & Young, LLP, an independent registered public accounting firm. Their report appears under "Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting."
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended December 31, 2020 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
On February 27, 2020, the Company amended and restated its bylaws (“Bylaws”) to provide that (i) the chair must be an independent member of the Company’s Board of Directors, (ii) a majority voting standard for election of Directors and (iii) certain conforming ministerial changes. The foregoing description of the Bylaws is qualified in its entirety by the full text of the Bylaws filed as Exhibit 3.2 hereto and incorporated by reference.
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PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item will be contained in the Registrant's definitive Proxy Statement for its 2021 Annual Stockholder Meeting to be filed with the Securities and Exchange Commission within 120 days after December 31, 2020 (the "2021 Proxy Statement") under the captions "Election of Directors," "Executive Officers," "Board Governance" and "Section 16(a) Beneficial Ownership Reporting Compliance," and is incorporated herein by reference.
As part of the Company's commitment to integrity, the Board of Directors has adopted a Code of Business Conduct and Ethics applicable to all directors, officers and employees of the Company and its subsidiaries. This Code is periodically reviewed by the Board of Directors. In the event we determine to amend or waive certain provisions of this code of ethics, we intend to disclose such amendments or waivers on our website at https://wynnresortslimited.gcs-web.com/corporate-governance/code-business-conduct-and-ethics within four business days following such amendment or waiver or as otherwise required by the Nasdaq listing standards.
Item 11. Executive Compensation
The information called for by this item is incorporated herein by reference to our definitive 2021 Proxy Statement under the captions "Board Compensation," "Compensation Discussion and Analysis" and "Executive Compensation Tables", which will be filed with the SEC.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Securities Authorized for Issuance Under Equity Compensation Plans
The following table summarizes compensation plans under which our equity securities are authorized for issuance, aggregated as to: (i) all compensation plans previously approved by stockholders, and (ii) all compensation plans not previously approved by stockholders. These plans are described in Item 8—"Financial Statements and Supplementary Data" of Part II (see Notes to Consolidated Financial Statements).
Plan Category Number of
Securities to
be Issued
Upon
Exercise of
Outstanding
Options,
Warrants
and Rights
(a)
Weighted-
Average
Exercise
Price of
Outstanding
Options,
Warrants
and Rights
(b)
Number of
Securities
Remaining
Available for
Future
Issuance
Under Equity
Compensation
Plans
(excluding
securities
reflected in
column (a))
(c)
Equity compensation plans approved by security holders 23,700 $ 80.42 3,495,890
Equity compensation plans not approved by security holders — — —
Total 23,700 $ 80.42 3,495,890
Certain information required by this item will be contained in the 2021 Proxy Statement under the caption "Certain Beneficial Ownership and Management," and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information called for by this item is incorporated herein by reference to our definitive 2021 Proxy Statement under the caption "Certain Relationships and Related Transactions," and "Board Governance," which will be filed with the SEC.
Item 14. Principal Accountant Fees and Services
The information called for by this item is incorporated herein by reference to our definitive 2021 Proxy Statement under the caption "Ratification of Appointment of Independent Auditors," which will be filed with the SEC.
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PART IV
Item 15. Exhibits, Financial Statement Schedules
(a)1. The following consolidated financial statements of the Company are filed as part of this report under Item 8—"Financial Statements and Supplementary Data."
• Reports of Independent Registered Public Accounting Firm
• Consolidated Balance Sheets as of December 31, 2020 and 2019
• Consolidated Statements of Operations for the years ended December 31, 2020, 2019, and 2018
• Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 2020, 2019, and 2018
• Consolidated Statements of Stockholders' Equity (Deficit) for the years ended December 31, 2020, 2019, and 2018
• Consolidated Statements of Cash Flows for the years ended December 31, 2020, 2019, and 2018
• Notes to Consolidated Financial Statements
• Quarterly Consolidated Financial Information (Unaudited)
(a)2. Financial Statement Schedule filed in Part IV of this report:
• Schedule II—Valuation and Qualifying Accounts
We have omitted all other financial statement schedules because they are not required or are not applicable, or the required information is shown in the consolidated financial statements or notes to the consolidated financial statements.
SCHEDULE II — VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
Description Balance at
Beginning of
Year
Provision (Benefit)
for
Credit Losses Write-offs,
Net of
Recoveries
Balance at
End of Year
Allowance for credit losses:
2020 $ 39,317 64,375 ( 3,363 ) $ 100,329
2019 $ 32,694 21,898 ( 15,275 ) $ 39,317
2018 $ 30,600 6,527 ( 4,433 ) $ 32,694
Description Balance at
Beginning of
Year
Additions Deductions Balance at
End of Year
Deferred income tax asset valuation allowance:
2020 $ 2,759,431 264,366 ( 37,113 ) $ 2,986,684
2019 $ 2,643,899 147,881 ( 32,349 ) $ 2,759,431
2018 $ 3,390,467 201,282 ( 947,850 ) $ 2,643,899
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(a)3. Exhibits
Exhibits that are not filed herewith have been previously filed with the SEC and are incorporated herein by reference.
Incorporated by Reference
Exhibit
No.
Description Form Filing Date
3.1 Third Amended and Restated Articles of Incorporation of the Registrant.
10-Q 5/8/2015
3.2 Ninth Amended and Restated Bylaws of the Registrant.
10-K 2/28/2020
4.1.0 Specimen certificate for shares of Common Stock, $0.01 par value per share of the Registrant.
S-1 10/7/2002
4.1.1 Indenture, dated as of April 14, 2020, by and among Wynn Resorts Finance, LLC, and Wynn Resorts Capital Corp., as joint and several obligors and the Guarantors named therein and U.S. Bank National Association, as trustee.
10-Q 5/8/2020
4.1.2 Indenture, dated as of June 17, 2020, by and between Wynn Macau, Limited and Deutsche Bank Trust Company Americas, as trustee, related to senior notes due 2026.
10-Q 8/6/2020
4.1.3 Indenture, dated as of August 26, 2020, by and between Wynn Macau, Limited and Deutsche Bank Trust Company Americas, as trustee, related to senior notes due 2028.
10-Q 11/9/2020
4.2 Description of Registrant's Securities.
10-K *
4.3 Indenture, dated as of May 22, 2013, by and among Wynn Las Vegas, LLC, Wynn Las Vegas Capital Corp., the Guarantors named therein and U.S. Bank National Association, as trustee.
8-K 5/22/2013
4.4 Supplemental Indenture, dated as of February 18, 2015, to Indenture, dated as of May 22, 2013, by and among Wynn Las Vegas, LLC, Wynn Las Vegas Capital Corp., the Guarantors named therein and U.S. Bank National Association, as trustee.
10-K 3/2/2015
4.5 Second Supplemental Indenture, dated as of March 20, 2018, to Indenture, dated as of May 22, 2013, by and among Wynn Las Vegas, LLC, Wynn Las Vegas Capital Corp., the guarantors party thereto and U.S. Bank National Association.
8-K 3/21/2018
4.6 Indenture, dated as of February 18, 2015, by and among Wynn Las Vegas, LLC, Wynn Las Vegas Capital Corp., the Guarantors named therein and U.S. Bank National Association, as trustee.
8-K 2/18/2015
4.7 Indenture, dated as of May 11, 2017, by and among Wynn Las Vegas, LLC, Wynn Las Vegas Capital Corp., the Guarantors named therein and U.S. Bank National Association, as trustee.
8-K 5/11/2017
4.8 Indenture, dated as of September 20, 2017, by and between Wynn Macau, Limited and Deutsche Bank Trust Company Americas, as trustee, relating to senior notes due 2024.
10-Q 11/8/2017
4.9 Indenture, dated as of September 20, 2017, by and between Wynn Macau, Limited and Deutsche Bank Trust Company Americas, as trustee, relating to senior notes due 2027.
10-Q 11/8/2017
4.10 Indenture, dated as of December 17, 2019, by and between Wynn Macau, Limited and Deutsche Bank Trust Company Americas, as trustee, related to senior notes due 2029.
10-K 2/28/2020
4.11 Indenture, dated as of September 20, 2019, by and among Wynn Resorts Finance, LLC, and Wynn Resorts Capital Corp., as joint and several obligors and the Guarantors named therein and U.S. Bank National Association, as trustee.
10-Q 11/6/2019
10.1.0 Credit Agreement, dated as of September 20, 2019, by and among Wynn Resorts Finance, LLC, as borrower, the subsidiaries of borrower party hereto, as guarantors, Deutsche Bank AG New York Branch, as administrative agent and as collateral agent.
10-Q 11/6/2019
10.1.1 Incremental Joinder Agreement No. 1, dated as of March 8, 2019, by and among Wynn Resorts, Limited, as borrower, Wynn Group Asia, Inc. and Wynn Resorts Holdings, LLC, as Guarantors, and Deutsche Bank AG New York Branch, as administrative agent.
10-Q 5/9/2019
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10.1.2 First Amendment to Credit Agreement, dated as of April 10, 2020, by and among Wynn Resorts Finance, LLC, as borrower, the subsidiaries of borrower party hereto, as guarantors, Deutsche Bank AG New York Branch, as administrative agent and as collateral agent.
10-Q 5/8/2020
10.1.3 First Amendment to Term Loan Agreement, dated as of May 5, 2020, by and among Wynn/CA Plaza Property Owner, LLC and Wynn/CA Property Owner, LLC, as borrowers, United Overseas Bank Limited, New York Agency, as administrative agent, and the lenders party thereto.
10-Q 8/6/2020
10.1.4 Amendment No. 2 to Credit Agreement, dated as of November 27, 2020, by and among Wynn Resorts Finance, LLC, as borrower, the subsidiaries of borrower party hereto, as guarantors, Deutsche Bank AG New York Branch, as administrative agent .
10-K *
10.2.1 Common Terms Agreement Sixth Amendment Agreement, dated December 21, 2018, between, among others, Wynn Resorts (Macau) S.A. as the company and Bank of China Limited, Macau Branch as security agent.
10-Q 2/28/19
10.2.2 Term Facility Agreement Fifth Amendment Agreement, dated December 21, 2018, by and among Wynn Resorts (Macau) S.A. and Bank of China Limited, Macau Branch as Hotel Facility Agent and Hotel Facility Lender.
10-Q 2/28/19
10.2.3 Revolving Credit Facility Agreement Second Amendment Agreement, dated as of December 21, 2018, by and among Wynn Resorts (Macau) S.A. and Bank of China Limited, Macau Branch as Revolving Credit Facility Agent and Revolving Credit Facility Lender.
10-Q 2/28/19
10.2.4 Common Terms Agreement Fifth Amendment Agreement, dated September 30, 2015, between, among others, Wynn Resorts (Macau) S.A. as the company and Bank of China Limited, Macau Branch as security agent.
10-Q 11/6/2015
10.2.5 Term Facility Agreement Fourth Amendment Agreement, dated September 30, 2015, by and among Wynn Resorts (Macau) S.A. and Bank of China Limited, Macau Branch as Hotel Facility Agent and Hotel Facility Lender.
10-Q 11/6/2015
10.2.6 Revolving Credit Facility Agreement Amendment Agreement, dated as of September 30, 2015, by and among Wynn Resorts (Macau) S.A. and Bank of China Limited, Macau Branch as Revolving Credit Facility Agent and Revolving Credit Facility Lender.
10-Q 11/6/2015
10.2.7 Debenture, dated as of September 14, 2004, between Wynn Resorts (Macau), S.A. and Société Générale, Hong Kong Branch as the Security Agent.
10-Q 11/4/2004
10.3.0 Term Loan Agreement, dated as of July 25, 2018, by and among Wynn/CA Plaza Property Owner, LLC and Wynn/CA Property Owner, LLC, as borrowers, United Overseas Bank Limited, New York Agency, as administrative agent and lead arranger, Fifth Third Bank, as joint lead arranger, Sumitomo Mitsui Banking Corporation, as joint lead arranger, Credit Agricole Corporate and Investment Bank, as managing agent, and the lenders party thereto.
10-Q 7/30/2018
10.4.1 Concession Contract for the Operation of Games of Chance or Other Games in Casinos in the Macau Special Administrative Region, dated June 24, 2002, between the Macau Special Administrative Region and Wynn Resorts (Macau), S.A. (English translation of Portuguese version of Concession Agreement).
10-Q 8/20/2002
10.4.2 Concession Contract for Operating Casino Gaming or Other Forms of Gaming in the Macao Special Administrative Region, dated June 24, 2002, between the Macau Special Administrative Region and Wynn Resorts (Macau), S.A. (English translation of Chinese version of Concession Agreement).
10-Q 9/18/2002
10.4.3 Unofficial English translation of Land Concession Contract between the Macau Special Administrative Region and Wynn Resorts (Macau), S.A.
10-Q 8/3/2004
10.4.4 Land Concession Contract, published on May 2, 2012, by and among Palo Real Estate Company Limited, Wynn Resorts (Macau), S.A. and the Macau Special Administrative Region of the People's Republic of China (translated to English from traditional Chinese and Portuguese).
10-Q 5/2/2012
10.4.5 Bank Guarantee Reimbursement Agreement, dated as of September 14, 2004, between Wynn Resorts (Macau), S.A. and Banco Nacional Ultramarino.
10-Q 11/4/2004
10.5.1 Corporate Allocation Agreement, dated as of September 19, 2009, by Wynn Macau, Limited and Wynn Resorts, Limited.
10-Q 3/2/2015
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10.5.2 Amended and Restated Corporate Allocation Agreement, dated as of September 19, 2009, by Wynn Resorts (Macau), S.A., and Wynn Resorts, Limited.
10-Q 3/2/2015
10.5.3 Management Fee and Corporate Allocation Agreement, dated as of February 26, 2015, by and between Wynn Las Vegas, LLC and Wynn Resorts, Limited.
10-Q 3/2/2015
10.5.4 Management Fee and Corporate Allocation Agreement, dated as of November 20, 2014, by and among Wynn MA, LLC and Wynn Resorts, Limited.
10-Q 2/29/2016
10.6.1 Intellectual Property License Agreement, dated as of September 19, 2009, by and among Wynn Resorts Holdings, LLC, Wynn Resorts, Limited and Wynn Macau, Limited.
10-Q 3/2/2015
10.6.2 Amended and Restated Intellectual Property License Agreement, dated as of September 19, 2009, by and among Wynn Resorts Holdings, LLC, Wynn Resorts, Limited and Wynn Resorts (Macau), S.A.
10-Q 3/2/2015
10.6.3 2015 Intellectual Property License Agreement, dated as of February 26, 2015, by and between Wynn Resorts Holdings, LLC, Wynn Resorts, Limited and Wynn Las Vegas, LLC.
10-Q 5/8/2015
10.6.4 2014 Intellectual Property License Agreement, dated as of November 20, 2014, by and between Wynn Resorts Holdings, LLC, Wynn Resorts, Limited and Wynn MA, LLC.
10-Q 2/29/2016
10.6.5 Surname Rights Agreement, dated as of August 6, 2004, by and between Stephen A. Wynn and Wynn Resorts Holdings, LLC.
10-Q 11/4/2004
10.6.6 Rights of Publicity License, dated as of August 6, 2004, by and between Stephen A. Wynn and Wynn Resorts Holdings, LLC.
10-Q 11/4/2004
+10.7.1.0 Amended and Restated Employment Agreement, dated as of December 16, 2019, by and between Wynn Resorts, Limited and Matt Maddox.
10-K 2/28/2020
+10.7.1.1 Second Amended and Restated Employment Agreement dated as of January 1, 2021, by and between Wynn Resorts, Limited and Matt Maddox.
10-K *
+10.7.2.0 Employment Agreement, dated as of January 27, 2017 by and between Wynn Resorts, Limited and Craig Billings.
10-Q 5/4/2017
+10.7.2.1 First Amendment to Employment Agreement, dated as of April 17, 2018, by and between Wynn Resorts, Limited and Craig S. Billings.
10-Q 5/9/2018
+10.7.2.2 Second Amendment to Employment Agreement, dated as of May 29, 2019, by and between Wynn Resorts, Limited and Craig Billings.
10-Q 8/8/2019
+10.7.2.3 Third Amended and Restated Employment Agreement dated as of January 1, 2021, by and between Wynn Resorts, Limited and Craig S. Billings.
10-K *
+10.7.3.0 Employment Agreement, dated as of August 2, 2018, by and between Wynn Resorts, Limited and Ellen Whittemore.
10-Q 8/8/2018
+10.7.3.1 First Amendment to Employment Agreement, dated as of May 29, 2019, by and between Wynn Resorts, Limited and Ellen Whittemore.
10-Q 8/8/2019
+10.7.3.2 Second Amended and Restated Employment Agreement dated as of January 1, 2021, by and between Wynn Resorts, Limited and Ellen F. Whittemore.
10-K *
+10.8 Amended and Restated 2014 Omnibus Incentive Plan, dated January 1, 2017.
10-Q 2/24/2017
10.9 Cooperation Agreement, dated as of August 3, 2018, by and between Wynn Resorts, Limited and Elaine P. Wynn.
10-Q 8/6/2018
10.10 Second Amended and Restated Shareholders' Agreement, dated as of January 14, 2016, by and among Wynn Resorts (Macau), Ltd., Wynn Resorts International, Ltd., Chen Chi Ling Linda and Wynn Resorts (Macau), S.A.
10-Q 2/28/2018
10.11 Form of Indemnity Agreement.
10-Q 9/18/2002
21.1 Subsidiaries of the Registrant.
10-K *
23.1 Consent of Ernst & Young LLP, Independent Registered Accounting Firm.
10-K *
31.1 Certification of Chief Executive Officer of Periodic Report Pursuant to Rule 13a – 14(a) and Rule 15d – 14(a).
10-K *
31.2 Certification of Chief Financial Officer of Periodic Report Pursuant to Rule 13a – 14(a) and Rule 15d – 14(a).
10-K *
32 Certification of CEO and CFO pursuant to 18 U.S.C. Section 1350.
10-K *
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101 The following material from Wynn Resorts, Limited's Annual Report on Form 10-K, formatted in Inline XBRL (Inline Extensible Business Reporting Language): (i) the Consolidated Balance Sheets as of December 31, 2020 and December 31, 2019; (ii) the Consolidated Statements of Operations for the years ended December 31, 2020, 2019, and 2018; (iii) the Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 2020, 2019, and 2018; (iv) the Consolidated Statements of Stockholders' Equity (Deficit) for the years ended December 31, 2020, 2019, and 2018; (v) the Consolidated Statements of Cash Flows for the years ended December 31, 2020, 2019 and 2019; and (vi) Notes to Consolidated Financial Statements. The instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. 10-K *
104 Cover Page Interactive Data File - The cover page XBRL tags are embedded within the Inline XBRL document.
* Filed herewith.
+ Denotes management contract or compensatory plan or arrangement.
Item 16. Form 10-K Summary
Not applicable.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
WYNN RESORTS, LIMITED
Dated: February 26, 2021 By: /s/ Matt Maddox
Matt Maddox
Director, Chief Executive Officer (Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Matt Maddox Director, Chief Executive Officer (Principal Executive Officer) February 26, 2021
Matt Maddox
/s/ Craig S. Billings President and Chief Financial Officer (Principal Financial and Accounting Officer) February 26, 2021
Craig S. Billings
/s/ Philip G. Satre Non-Executive Chair of the Board and Director February 26, 2021
Philip G. Satre
/s/ Betsy S. Atkins Director February 26, 2021
Betsy S. Atkins
/s/ Richard J. Byrne Director February 26, 2021
Richard J. Byrne
/s/ Jay L. Johnson Director February 26, 2021
Jay L. Johnson
/s/ Patricia Mulroy Director February 26, 2021
Patricia Mulroy
/s/ Margaret J. Myers Director February 26, 2021
Margaret J. Myers
/s/ Clark T. Randt, Jr. Director February 26, 2021
Clark T. Randt, Jr.
/s/ Darnell Strom Director February 26, 2021
Darnell Strom
/s/ Winifred Webb Director February 26, 2021
Winifred Webb
119