ORIGINAL Ju t4 c u.primi Tourt of t4P

ORIGINAL

Ju t4 c u.primi Tourt of t4P

INDICATE FULL, CAPTION:

.... ARVEY.... OHEN=----an-- ind-ividua1......

Appellant(s),

C^ URi r` I LE D€ tuab AUG 0 3 2000

No .... 3 6 4 3 4------- ----------vs.

MIRAGE RESORTS INC., a Nevada

co "r. 9

or'a't"io'ri ; MIR79G E $cgtt i r1 f;r S B, INC. ,a"""Nevad-a---"co'r'por t'2'b'ri;---JE-FF-R7EY---- AU JACOB S DOCKETING STATEMENT

""""an""" rid"iv"idua2;....Respondent(s). CIVIL APPEALS

------------------------------------------------------------------------------------------------------Cross-Appellant(s),

vs.

------------------------------------ ------------------------------------------------------------------

Cross-Respondent(s).

GENERAL INFORMATION

All appellants not in proper person must complete this docketing statement . NRAP 14(a). The purpose of thedocketing statement is to assist the Supreme Court in screening jurisdiction , classifying cases for en bane,panel , or expedited treatment , compiling statistical information and identifying parties and their counsel.

WARNING

This statement must be completed fully, accurately and on time. NRAP 14(c). The Supreme Court may imposesanctions on counsel or appellant if it appears that the information provided is incomplete or inaccurate. Id.Failure to attach documents as requested in this statement , completely fill out the statement , or to fail to file itin a timely manner , will constitute grounds for the imposition of sanctions , including a fine and/or dismissal ofthe appeal.

This court has noted that when attorneys do not take seriously their obligations under NRAP 14 to completethe docketing statement properly and conscientiously , they waste the valuable judicial resources of this court,making the imposition of sanctions appropriate . See KDI Sylvan Pools v. Workman , 107 Nev. 340, 344, 810P.2d 1217 , 1 Please use tab dividers to separate any attached documents.

AUG 0 v 2000

JANE i E M. BLOO':1CLERK OF SUPREME COURT

DEPUTY CLERK

--!

Judicial District.... E i g h t h---------------------Department----------- I..................... ----- County .......... C l a r kJudge Y a l o r ie Vega -----District Ct. Docket No----------- ------------------------------------------

2. Attorney filing this docket statement:

Attorney------- J Randall- Jones E-s-4' Telephone............70-2--38-5-6000Firm.--_.-Ha r r i s on,.... emp--- &---Jon-e_s ,--_ C h a r t e r-e-d ---------------------Address____3_$.Q.O-___HS2_x? a r H_-. H u-gh_e-s..--P a r kw ay---_-_-Las _-_ .Vegas .,.--.Nevada ---8-9.1.0 9_--__ ____ -------------------------

^_e v.e.a_.aazLh F Q Q ------------------------------------------------------------------------------ .........................................................Client(s).---- P],_&_i-n-t_i. f-►....Har e-y----Co_han------------------- --------------

If this is a joint statement completed on behalf of multiple appellants , add the names and addresses of othercounsel and the names of their clients on an additional sheet accompanied by a certification that theyconcur in the filing of this statement.

3. Attorney (s) representing respondent(s):

Attorney--.Ste u•e---Mo.r x i .,_._E.s.A............................................................. Telephone ......... 2101-------•---•.Firm .......... S-c.hx.e.ck•--Mnrx-Ls................................................................ •................. •---------------- --................................................

Address .... 1-Z-0-Q---Rank .... -f--_Amar ina...El-a.z.a-------------------------------------------------------------------•--------------------------------------------....3.0.0---South...-E o.u-r-th ---Str.e e.t-------------------Las-- u.e.g as a----X P -V. i3 -da_-$ 9.1 Q-1--------------------------------

Client(s).....Mir.a-ga•--R.es n-r-t-s•,--._Inc..---------------------------------------------------------------------------------------------------------------------------------

Attorney---------------------------------------•---------------------------------------------------------•------------------Telephone------.....---------------------------------------------Firm---•--------•-----------------•------------•------•------Address------------------------------------------------------------------------------------ ..._..------------•----...------------------------------------------------------------

--------------------------------------------------------------•-----------------------------------------------•------------------------------------------------------------------------------------Client(s)-------------------------•--------------------------------•-----------------------------------------------------------------------------------------------------•---------------------------------

(List additional counsel on separate sheet if necessary)

4. Nature of disposition below (check all that apply):

q Judgment after bench trial q Grant/Denial of NRCP-60(b) reliefq Judgment after jury verdict q Grant/Denial of injunctionq Summary judgment q Grant/Denial of declaratory reliefq Default judgment q Review of agency determination® Dismissal q Divorce decree:

q Lack of jurisdiction q Original q ModificationFailure to state a claim q Other disposition (specify) ............................................

q Failure to prosecute ----------------------------------------------- ..............................................El Other (specify) .....................................................

5. Does this appeal raise issues concerning any of the following:

q Child custody q Termination of parental rightsq Venue q Grant/denial of injunction or TROq Adoption q Juvenile matters

6. Pending and prior proceedings in this court . List the case name and docket number of all appeals or originalproceedings presently or previously pending before this court which are related to this appeal:

None

7. Pending and prior proceedings in other courts. List the case name, number and court of all pending and priorproceedings in other courts which are related to this appeal (e.g., bankruptcy, consolidated or bifurcatedproceedings) and their dates of disposition:

None

8. Nature of the action . Briefly describe the nature of the action, including a list of the causes of action pleaded,and the result below:

See Exhibit "A."

9. Issues on appeal . State concisely the principal issue(s) in this appeal:

See Exhibit "A."

10. Pending proceedings in this court raising the same or similar issues. If you are aware of any proceedingpresently pending before this court which raises the same or similar issues raised in this appeal, list the casename and docket number and identify the same or similar issues raised:

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

11. Constitutional issues. If this appeal challenges the constitutionality of a statute, and the state, any stateagency, or any officer or employee thereof is not a party to this appeal, have you notified the clerk of this courtand the attorney general in accordance with NRAP 44 and NRS 30.130?

N/A................ Yes ................ No................

If not, explain ------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------------------

12. Other issues. Does this appeal involve any of the following issues?q Reversal of well-settled Nevada precedent (on an attachment, identify the case(s))q An issue arising under the United States and/or Nevada Constitutions

A substantial issue of first-impressionC An issue of public policyq An issue where en banc consideration is necessary to maintain uniformity of this court's decisionsq A ballot question

If so, explainSee Exhibit "A."- ---------------------------------------------------------------------------------------- --------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

13. Trial . If this action proceeded to trial , how many days did the trial last ? ........ l_a ...............................................

Was it a bench or jury trial ? ---------------------------------------------------------

14. Judicial disqualification. Do you intend to file a motion to disqualify or have a justice recuse him/herselffrom participation in this appeal . If so, which Justice?

No---------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ------------------------------ - ---

- 3 -

TIMELINESS OF NOTICE OF APPEALJune 16, 2000

15. Date of entry of written judgment or order appealed from ------------------------------------ ------------------------- Attach a copy.If more than one judgment or order is appealed from, attach copies of each judgment or order fromwhich an appeal is taken.

(a) If no written judgment or order was filed in the district court , explain the basis for seeking appellate review:

------------------------------------------------------------------------ -------- -----------------------------------------------------------------------------------------------------------------------

16. Date written notice of entry of judgment or order served ------- June 16, 2000 - Attach a copy,including proof of service, for each order or judgment appealed from.-------------------------------

(a) Was service by delivery ..................................or by mail ............X. .................. (specify).

17. If the time for filing the notice of appeal was tolled by a post judgment motion (NRCP 50(b), 52 (b), or 59),

(a) Specify the type of motion, and the date and method of service of the motion, and date of filing.

n/aNRCP 50(b) ..............Date served...................By delivery...............or by mail ................. Date of filing................................NRCP 52(b) ..............Date served...................By delivery...............or by mail ................. Date of filing................................

....-NRCP 59 ....................Date served...................By delivery ............... or by mail ................. Date of filing ........................ ...

Attach copies of all post-trial tolling motions.

NOTE: Motions made pursuant to NRCP 60 or motions for rehearing or reconsideration do not toll thetime for filing a notice of appeal.

(b) Date of entry of written order resolving tolling motion ................................................................... Attach a copy.

(c) Date written notice of entry of order resolving motion served ...................................................... Attach a copy,including proof of service.

n / a

(i) Was service by delivery ....................................or by mail .................................... (specify).

18. Date notice of appeal was filed ........-. J u l y10 , 2 0 0 0

(a) If more than one party has appealed from the judgment or order, list date each notice of appeal was filed andidentify by name the party filing the notice of appeal:

N/A

19. Specify statute or rule governing the time limit for filing the notice of appeal, e.g., NRAP 4(a), NRS155.190, or other....... N RAP 4 (a)---------------------------------------------------------------------------------------------------------------------------------------- - -

SUBSTANTIVE APPEALABILITY

20. Specify the statute or other authority granting this court jurisdiction to review the judgment or orderappealed from:

NRAP 3A(b)(1)------ X------ NRS 155.190---------------- ------------(specify subsection)-------------------------- ---------------------------------- ......---NRAP 3A(b)(2)--------------- NRS 38.205------------------- -----------(specify subsection) ---------------------- ------------------------------------------------NRAP 3A(b)(3)---------------NRS 703.376--_--_----......-----..._.

Other (specify) -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Explain how each authority provides a basis for appeal from the judgment or order:

This is an appeal from an Order dismissing Plaintiff's entire case.

COMPLETE THE FOLLOWING SECTION ONLY IF MORE THAN ONE CLAIM FOR RELIEF WASPRESENTED IN THE ACTION (WHETHER AS A CLAIM, COUNTERCLAIM, CROSS-CLAIM, ORTHIRD-PARTY CLAIM) OR IF MULTIPLE PARTIES WERE INVOLVED IN THE ACTION. Attachseparate sheets as necessary.

21. List all parties involved in the action in the district court:

See Exhibit "A."

(a) If all parties in the district court are not parties to this appeal, explain in detail why those parties are notinvolved in this appeal, e.g., formally dismissed, not served, or other:

22. Give a brief description (3 to 5 words ) of each party 's separate claims, counterclaims , cross-claims orthird-party claims , and the trial court 's disposition of each claim , and how each claim was resolved (i.e.,order, judgment , stipulation), and the date of disposition of each claim . Attach a copy of each disposition.

See Exhibit "A."

23. Attach copies of the last-filed version of all complaints , counterclaims , and/or cross-claims filed in thedistrict court.

24. Did the judgment or order appealed from adjudicate ALL the claims alleged below and the rights andliabilities of ALL the parties to the action below:

Yes...... X-------- No----------------

25. If you answered " No" to the immediately previous question , complete the following:

N/A(a) Specify the claims remaining pending below:

(b) Specify the parties remaining below:

(c) Did the district court certify the judgment or order appealed from as a final judgment pursuant to NRCP54(b):

Yes ................ No................ If "Yes," attach a copy of the certification or order, including any notice ofentry and proof of service.

(d) Did the district court make an express determination, pursuant to NRCP 54(b), that there is no just reasonfor delay and an express direction for the entry of judgment:

Yes ................No................

26. If you answered "No" to any part of question 25, explain the basis for seeking appellate review (e.g.,order is independently appealable under NRAP 3A(b)):

VERIFICATION

I declare under penalty of perjury that I have read this docketing statement , that the information providedin this docketing statement is true and complete to the best of my knowledge , information and belief, and that Ihave attached all required documents to this docketing statement.

HARVEY COHEN J RANDALL JONES

State and county where signed

CERTIFICATE OF SERVICE

I certify that on the.... ./_-_ ------------- day ofdocketing statement upon all counsel of record:

, I served a copy of this completed________________ 4^

q By personally serving it upon him/her; or

q By mailing it by first class mail with sufficient postage prepaid to the following address(es):

Steve Morris, Esq

Schreck Morris

1200 Bank of America Plaza

300 South Fourth Street

Las Vegas, NV 89101

Attorneys for Respondents

Dated this ...l:.. ....._....day of ... o

(Rev. 4-99) -7- (O)-1276

EXHIBIT A

#8:

Plaintiff and the Class sued the Defendants in a Class Action pursuant to NRCP 23(a), for thedamages sustained by them as a result of the various breaches of fiduciary duty by Defendants asDirectors , Officers and Controlling Shareholders of BOARDWALK CASINO, INC.("Boardwalk") which allowed Defendants MIRAGE RESORTS, INC. and MIRAGEACQUISITION SUB, INC. (collectively, "Mirage") to obtain all outstanding shares ofBoardwalk for consideration far less than Boardwalk ' s value of the shares to the detriment ofeach member of the Class . The consideration received by Plaintiff and the Class by Mirage was$5 per Boardwalk share . The Individual Defendants named in this Complaint received, inexchange for agreeing to the grossly undervalued rate of $5 per share offered by Mirage,additional inducements . The plaintiffs - minority shareholders of Boardwalk - shared in none ofthese inducements.

Plaintiff alleged claims for breaches of duty of loyalty, and breach of fiduciary duty againstBoardwalk's directors and officers and tortious interference with fiduciary duty against Mirage.

Defendants moved to dismiss Plaintiff's claims on the grounds that: 1) Plaintiff lacks standing tobring his claims as they are derivative in nature; 2) Plaintiff's exclusive remedy for his claimswas the exercise of his "dissenter's rights" pursuant to NRS 92A.300, which rights have expired;3) Plaintiff's breach of loyalty and fiduciary duty claims were barred by Boardwalk's Articles ofIncorporation which limits the personal liability of a director or officer for his own fiduciarybreaches; and 4) the allegations in Plaintiff's third claim for relief fail to state a claim for breachof fiduciary duty.

On June 14, 2000, after concluding that the Plaintiff's lone remedy was the exercise of hisdissenter's rights, the Honorable Judge Valorie Vega, Department II, Eighth Judicial DistrictCourt, Clark County, Nevada, filed her Order of Dismissal.

#9

The principal issues on appeal are the following:

1. Whether Plaintiff's claims challenging the validity of the merger itself are derivative,rendering Plaintiff without standing to bring this suit; and

2. Whether Plaintiff was limited to an appraisal proceeding as his exclusive remedypursuant to NRS 92A.300 where his claims are based on "unlawful or fraudulent"conduct and are therefore exempt from the appraisal rights procedure under the statute.

1^1#12

This case involves a substantial issue of first impression and issues of public policy. This Courthas yet to evaluate the application of NRS 92A.300, et seq. and their preclusive effect, if any, onother rights and remedies that a shareholder has. Additionally, the District Court's holding inthis case presents important public policy concerns. The conclusion that Plaintiff's only remedywas an exercise of his appraisal rights under NRS 92A.300 et seq. deprives shareholders of theability to seek judicial review of the actions of directors and officers even when fiduciarybreaches are alleged. The District Court's ruling that Plaintiff lacked standing because his claimwas not direct, but derivative, also deprives him and any similarly situated shareholder of gpyremedy. A shareholder may only maintain derivative claims as long as he owns stock in thesubject corporation. However, in this case, the cash-out merger deprived Plaintiff of his shares,rendering him unable to maintain a derivative suit. Under the Court's ruling, Plaintiff is placedin a Catch-22: Plaintiff's only remedy for Defendant's wrongdoing that led to the merger andundervaluation of his shares is a derivative suit; yet, through the merger, he lost his right to bringa derivative action. Thus, pursuant to the District Court's holding, Plaintiff and the class are leftwithout any remedy, and Defendants escape punishment for their misconduct.

#21

HARVEY COHEN, an individual , Plaintiff,

vs.

MIRAGE RESORTS INC., a Nevada Corporation , MIRAGE ACQUISITION SUB, INC., a

Nevada Corporation , JEFFREY PAUL JACOBS, an individual , LOUIS SPOSATO, anindividual, JAMES SCIBELLI, an individual , FORREST WOODWARD, an individual , AVIS P.

JANSEN, an individual ; JACOBS ENTERTAINMENT, NEVADA, INC., a NevadaCorporation , DIVERSIFIED OPPORTUNITIES GROUP, LTD., an Ohio limited liabilitycompany, Defendants.

#22

This case involves only claims asserted by the Plaintiff against the following Defendants:

Claim Defendant(s)

1. Breach of Duty of Loyalty Jeffrey Paul Jacobs, Avis P. Jansen, James Scibelli,Louis Sposato and Forrest Woodward

2. Breach of Duty of Loyalty James Scibelli

3. Breach of Fiduciary Duty Diversified Opportunities Group, Ltd., JacobsEntertainment, Nevada, Inc., Jeffrey Paul Jacobsand Avis P. Jansen

4. Tortious Interference with Mirage Resorts, Inc., Mirage Acquisition Sub, Inc.Fiduciary Duty

The District Court's Order of Dismissal disposed of all claims in their entirety.

P:\USERSUCP\ACTTVE FILES\Boardwalk\docketing.typing.wpd

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28IRECK MORRIS

►NK OF AMERICA PLAZA)UTH FOURTH STREET

S VEGAS, NV89101

(702)382-2101

VC (702) 382-8135

NOTJSteve MorrisNevada Bar No. 1543James J. PisanelliNevada Bar No. 4027SCHRECK MORRIS300 South Fourth Street1200 Bank of America PlazaLas Vegas, Nevada 89101(702) 382-2101Attorneys for DefendantMirage Resorts, Incorporated

DISTRICT COURT

CLARK COUNTY, NEVADA

HARVEY COHEN, an individual,

vs.

Plaintiff,

MIRAGE RESORTS, INCORPORATED, aNevada corporation, MIRAGEACQUISITION SUB, INC., a Nevadacorporation, JEFFREY PAUL JACOBS, anindividual, LOUIS SPOSATO, anindividual, JAMES SCIBELLI, an individual,FORREST WOODWARD, an individual,AVIS P. JANSEN, an individual; JACOBSENTERTAINMENT NEVADA, INC., aNevada corporation, DIVERSIFIEDOPPORTUNITIES GROUP, LTD., an Ohiolimited liability company,

Defendants.

FILEDJUN IS 110 1^ytf ,A

'ooCw:' =

GLErt

Case No. A408662Dept. No. II

NOTICE OF ENTRY OFORDER OF DISMISSAL

Date of Hearing: 06/05/00Time of Hearing: -10:00 a.m.

TO: HARVEY COHEN, Plaintiff; and

TO: J. RANDALL JONES , ESQ., of HARRISON, KEMP & JONES and JACOB A.

GOLDBERG , ESQ., of BERGER & MONTAGUE, P.C ., attorneys for Plaintiff:

i GGCF4%t,it.ri & J

*RJy/ / /<:

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RECK MORRIS

NK OF AMERICA PLAZA

UTH FOURTH STREET

VEGAS, NV 89101

702) 382-2101

X(702 ) 382-8135

WILL YOU, AND EACH OF YOU, PLEASE TAKE NOTICE that an Order of

Dismissal was entered in the above entitled action on the 13th day of June, 2000, a true and

correct copy of which is attached hereto.

DATED this 15t' day of June, 2000.

SCHRECK MORRIS

JA J. PIS , LLI, ESQ.Ne a Bar No. 4027300 South Fourth Street1200 Bank of America PlazaLas Vegas, Nevada 89101Attorneys for DefendantMirage Resorts, Incorporated

CERTIFICATE OF MAILING

I HEREBY CERTIFY that I am an employee of the law firm of Schreck Morris and

that on the 15t' day of June, 2000, I placed a true and correct copy of the above and

foregoing NOTICE OF ENTRY OF ORDER and the attached corresponding ORDER OF

DISMISSAL, filed in the above entitled matter on the 14th day of June, 2000, in a sealed

envelope, postage pre-paid, in the United States Mail, addressed as follows:

HARRISON, KEMP & JONESJ. Randall Jones, Esq.3800 Howard Hughes Parkway7th FloorLas Vegas, Nevada 89109

g.\- \d-\w1p \pp\ming-h-129 01\.rd I .pld\0612-00\11.70\Mp

Sherrie R. Savett, Esq.Jacob A. Goldberg, Esq.BERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, Pennsylvania 19103

L%L^AN EMPLOYEE OF SCHRECK MORRIS

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28ECK MORRIS

OF AMERICA PLAZAH FOURTH STREETEGAS, NV 89101)2)382-2101702)382-8135

ORDGSteve MorrisNevada Bar No. 1543James J. PisanelliNevada Bar No. 4027SCHRECK MORRIS300 South Fourth Street1200 Bank of America PlazaLas Vegas, Nevada 89101(702) 382-2101Attorneys for DefendantMirage Resorts, Incorporated

I! -

JUN 14 3 It 9 PM ' L :u

CLERK

DISTRICT COURT


HARVEY COHEN, an individual, )

Plaintiff, ) Case No. A408662) Dept. No. II

vs. )

MIRAGE RESORTS, INCORPORATED, a )Nevada corporation , MIRAGE )ACQUISITION SUB, INC., a Nevada )corporation, JEFFREY PAUL JACOBS, an )individual , LOUIS SPOSATO, an )individual, JAMES SCIBELLI, an individual, )FORREST WOODWARD, an individual, )AVIS P. JANSEN, an individual; JACOBS )ENTERTAINMENT NEVADA, INC., a )Nevada corporation , DIVERSIFIED )OPPORTUNITIES GROUP, LTD., an Ohio )limited liability company, )

Defendants.

ORDER OF DISMISSAL

Date of Hearing: 06/05/00Time of Hearing: 10:00 a.m.

This matter having come before the Court on June 5, 2000 for hearing on

Defendants' Motion to Dismiss. Appearing before the Court on behalf of Plaintiff were

Jacob A. Goldberg, Esq. and Randall J. Jones, Esq. Appearing for Defendants was James

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28RECK MORRISVK OF AMERICA PLAZAJTH FOURTH STREETVEGAS, NV 89101702)382-2101K (702) 382-8135

J. Pisanelli, Esq. The Court having considered the papers filed on behalf of all parties, and

the arguments by counsel , and good cause appearing therefore,

IT IS HEREBY ORDERED that Defendants ' Motion to Dismiss is GRANTED.

Plaintiff's Complaint , and each claim stated therein , is hereby dismissed in its entirety.

DATED thiA? day of June, 2000.

N

Respectfully submitted,

SCHRECK MORRIS

y ^WU,i 1--^ ttL,i

1. MkDLLI, ESO.ada Bar IW/. 4027

300 South Fourth Street1200 Bank of America PlazaLas Vegas, Nevada 89101Attorneys for DefendantMirage Resorts, Incorporated

g:\-\da6\wlp\jjp\.v.g-he 1 246-NI\11de Lpld\O l2a \11:]0\wlp

VALORIE J. VEGADISTRICT COURT JUDGE

2

SCHRECK MORRIS

ATTORNEYS AT LAW

1200 BANK OF AMERICA PLAZA

300 SOUTH FOURTH STREET

LAS VEGAS, NEVADA $9101

J. Randall Jones, Esq.Harrison, Kemp & Jones3800 Howard Hughes Parkway7th FloorLas Vegas, NV 89109

11 ,l11 1 1 1 1111111111,11, 11 1 11 11 1111 )111 111 1 11131!1 )31 11 il!til 1

•FLED

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o'd o0In ° M 14

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ACOMJ. RANDALL JONES, ESQ.Nevada Bar No.: 001927JENNIFER C. POPICK, ESQ.Nevada Bar No.: 006456HARRISON, KEMP & JONES, CHTD.300 South Fourth Street, Suite 600Las Vegas, Nevada 89101Tel. (702) 385-6000

SHERRIE R. SAVETT, ESQ.JACOB A. GOLDBERG, ESQ.JILL E. STERBAKOV, ESQ.BERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, PA 191903Tel. (215) 875-3000

Attorneys for PLAINTIFFS.

SEP

DISTRICT COURT


HARVEY COHEN , an individual,

3 37 F `99

Case No.: A408662Dept. No.: II

Plaintiff,

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v.

MIRAGE RESORTS, INCORPORATED, aNevada Corporation, MIRAGEACQUISITION SUB, INC., a NevadaCorporation, JEFFREY PAUL JACOBS, anindividual, LOUIS SPOSATO, an individual,JAMES SCIBELLI, an individual, FORRESTWOODWARD, an individual, AVIS P.JANSEN, an individual; JACOBSENTERTAINMENT NEVADA, INC., aNevada Corporation, DIVERSIFIEDOPPORTUNITIES GROUP, LTD., an Ohiolimited liability company

FIRST AMENDEDCOMPLAINT FOR DAMAGES

Exempt from Arbitration:Damages in Excess of $40, 000.00.

Defendants.

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FIRST AMENDED COMPLAINT FOR DAMAGES

COMES NOW, Plaintiff, HARVEY COHEN, an individual , on behalf of himself and a

class of persons similarly situated (the "Class"), by and through his counsel, HARRISON,

KEMP & JONES, CHARTERED and BERGER & MONTAGUE, P.C., hereby complains and

alleges against MIRAGE RESORTS, INCORPORATED, a Nevada Corporation, MIRAGE

ACQUISITION SUB, INC., a Nevada Corporation , JEFFREY PAUL JACOBS, an individual,

LOUIS SPOSATO, an individual, JAMES SCIBELLI, an individual, FORREST WOODWARD,

an individual , AVIS P. JANSEN, an individual, JACOBS ENTERTAINMENT NEVADA, INC.,

a Nevada corporation , DIVERSIFIED OPPORTUNITIES GROUP, LTD., an Ohio limited

liability company, as follows:

1.

INTRODUCTION

1. At all times relevant hereto, Plaintiff was a resident of the State of Nevada,

County of Clark, and was a minority shareholder of stock in the BOARDWALK CASINO, INC.

Plaintiff and the Class are suing the Defendants in a Class Action pursuant to NRCP 23(a), for

the damages sustained by them as a result of the various breaches of fiduciary duty by

Defendants as Directors, Officers and Controlling Shareholders, which allowed Defendanta

MIRAGE RESORTS, INCORPORATED to obtain all outstanding shares of BOARDWALK for

consideration far less than BOARDWALK' S value of the shares to the detriment of each member

of the Class. The consideration received by Plaintiff and the Class by MIRAGE was $5 per

BOARDWALK share . The Individual Defendants named in this Complaint received, in

exchange for agreeing to the grossly undervalued rate of $5 per share offered by MIRAGE,

additional inducements itemized below . The minority shareholders of BOARDWALK shared in

none of these inducements. -

II.

PARTIES

2. Plaintiff HARVEY COHEN was at all relevant times a shareholder of

BOARDWALK CASINO, INC. (`BOARDWALK ") until the merger agreement (the "Merger"

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or the "Merger Agreement") was consummated and each of his shares were converted into the

right to receive $5 in cash, damaging him thereby. Plaintiff COHEN first purchased

approximately 105,000 shares of BOARDWALK CASINO, INC. between October 4, 1996 and

December 30, 1996. Mr. COHEN remained a minority shareholder until BOARDWALK

merged with MIRAGE on June 30, 1998. At the time of the merger, COHEN held

approximately 74,000 shares of common stock.

3. Defendant MIRAGE RESORTS, INCORPORATED ("MIRAGE") is a

corporation duly organized and existing under the laws of the State of Nevada with its principal

executive offices located at 3400 Las Vegas Boulevard South, Las Vegas, Nevada 89109. The

company is engaged in the lodging and casino gaming business, specializing in spectacular

mega-resorts.

4. Defendant MIRAGE ACQUISITION SUB, INC. ("ACQUISITION") is a wholly

owned subsidiary of MIRAGE, created for the sole purpose of effectuating the Merger

complained of herein. The principal executive office of ACQUISITION is located at 3400 Las

Vegas Boulevard South, Las Vegas, Nevada 89109.

5. Defendant FORREST WOODWARD, II ("WOODWARD") was President and

Chief Operating Officer of BOARDWALK prior to the Merger, and has continued serving in that

capacity at ACQUISITION since the time of the Merger.

6. Defendant LOUIS J. SPOSATO ("SPOSATO") was BOARDWALK's Chief

Financial Officer prior to the Merger, and has continued to serve in that capacity for

ACQUISITION. Defendant SPOSATO resigned from BOARDWALK in or about November,

1997.

7. Defendant AVIS P. JANSEN ("JANSEN") was Chairman of the Board of

Directors and a Principal Stockholder of BOARDWALK. In addition, ooncurrently with the

execution of the Merger Agreement, Jansen, individually and as executrix of the Estate of

Norbert W. Jansen, as Trustee for the Jansen Family Trust and as President of Holiday Gifts,

Inc., entered into a series of self-interested agreements with MIRAGE, in violation of her

fiduciary duty to BOARDWALK shareholders.

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8. Defendants DIVERSIFIED OPPORTUNITIES GROUP, LTD., an Ohio limited

liability company ("DIVERSIFIED"), JACOBS ENTERTAINMENT NEVADA, INC., a

Nevada corporation ("JACOBS ENTERTAINMENT"), and JEFFREY P. JACOBS

("JACOBS"), (collectively referred to as the "JACOBS SELLERS"), simultaneous with the

Merger Agreement, entered into a series of self-interested agreements with MIRAGE at the

expense of BOARDWALK shareholders. The JACOBS SELLERS, along with JANSEN,

represented a majority of the outstanding BOARDWALK common stock at the time of the

Merger.

9. Defendant JAMES SCIBELLI ("SCIBELLI") was a member of the

BOARDWALK Board of Directors from February of 1994 until his resignation on October 31,

1997, less than two months before the Merger. SCIBELLI also is President of ROBERTS &

GREEN, INC. ("R&G") since 1986. R&G was engaged by BOARDWALK as its exclusive

financial advisor with respect to the Merger. R&G and SCIBELLI received a substantial fee for

rendering their opinion, which was largely contingent upon the consummation of the Merger.

10. Together, JACOBS and JANSEN held approximately 53.2% of the total number

of outstanding shares of common stock on April 29, 1998, enough shares to approve the

proposed merger of BOARDWALK and MIRAGE.

11. Defendants WOODWARD, SPOSATO, JANSEN, JACOBS, and SCIBELLI

(hereinafter collectively referred to as the "Individual Defendants"), voted in favor of and/or

approved the terms of the Merger Agreement. Moreover, each of the Individual Defendants

represented that the terms of the Merger Agreement were fair and reasonable to BOARDWALK

shareholders and recommended that BOARDWALK shareholders vote to accept the offer of $5

per share and voted their shares as a block insuring approval of the merger, all in violation of

their fiduciary duties.

12. The Individual Defendants were the directors and/or controlling shareholders of

BOARDWALK at all relevant times and had the power to control, and did in fact control, the

day-to-day operations of BOARDWALK.

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III.

JURISDICTIONAL ALLEGATIONS

13. At all times relevant hereto, Plaintiff, HARVEY COHEN was the actual owner

and/or beneficial owner of shares of BOARDWALK common stock, and is, and was, a resident

of the State of Nevada, County of Clark.

14. Plaintiff is informed and believes and thereupon alleges that, at all times relevant

hereto, Defendant, BOARDWALK CASINO, INC., was a publicly held corporation organized

and existing under the laws of the State of Nevada, with its principal place of business at 3600

Las Vegas Boulevard South, Las Vegas, Nevada, 89109 (County of Clark).


hereto, Defendant, MIRAGE RESORTS, INCORPORATED, was a publicly held corporation

organized and existing under the laws of the State of Nevada, with its principal place of business

in Las Vegas, Nevada, County of Clark.


hereto, Defendant, JACOBS ENTERTAINMENT NEVADA, INC., was and remains a

corporation organized and existing under the laws of the State of Nevada, with its principal place

of business in Las Vegas, Nevada, County of Clark.

17. Plaintiff is informed and believes and thereupon alleges that at all times relevant

hereto, Defendant JACOBS is a resident of the State of Ohio.

18. Plaintiff is informed and believes and thereupon alleges that at all times relevant

hereto, Defendants WOODWARD, SPOSATO, SCIBELLI, and JANSEN were and are residents

of the State of Nevada, County of Clark. Defendant SCIBELLI was a resident of the State of

New York.

19. This Court has jurisdiction in this matter, and venue is preper, in that the

Complaint arises from the illegal activities conducted at, through, or with respect to, the

BOARDWALK CASINO, INC., in Las Vegas, Clark County, Nevada.

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IV.

CLASS ACTION ALLEGATIONS

20. Plaintiff brings this class action on their own behalf and on behalf of all other

stockholders of the BOARDWALK under the provisions of Rule 23(a) of the Nevada Rules of

Civil Procedure. The Class is represented by Plaintiff in this action of which Plaintiff is himself

a member, and consists of all those shareholders of BOARDWALK, other than the named

Defendants, who tendered their BOARDWALK shares to ACQUISITION pursuant to

BOARDWALK's merger with MIRAGE on June 30, 1998. Plaintiff and the Class received

only $5 for each share of BOARDWALK stock they held, as opposed to the individual

defendants, who received valuable inducements in addition to the $5 they received for each of

their shares.

21. The members of the Class are so numerous that joinder is impractical. The exact

number of the members of the class is unknown to Plaintiffs, but may be determined from

records maintained by Defendant BOARDWALK. It is estimated that there may be hundreds of

plaintiffs. In many cases, such Plaintiffs are yet unaware that claims exist or are about to be

brought, or are unaware of the facts giving rise to such claims. Nevertheless, the damages and

Class members as a group are substantial and significant to justify the taking of legal action.

22. There are common questions of law and fact in the action that relate to and effect

the rights of each member of the Class and the relief sought in common to the entire Class.

Plaintiff asserts on his own behalf and on behalf of the Class that Defendant Officers and

directors breached their fiduciary duty of loyalty in violation of NRS 78.140, that Defendants

JACOBS and JANSEN breached their fiduciary duties to BOARDWALK's minority

shareholders as Controlling Shareholders and that Defendants MIRAGE and ACQUISITION

tortiously interfered with the Individual Defendants ' fiduciary duties.

23. This action is properly maintained as a class action inasmuch as the questions of

law and fact common to all members of the Class predominate over any questions affecting only

individual members, and the class action is superior to other available methods for the fair and

efficient adjudication of this controversy . Among the questions of law or fact common to the

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Class are the following:

a. Whether the Individual Defendants, as Officers, Directors and Controlling

Shareholders, breached their fiduciary duty of loyalty in retaining

SCIBELLI, an interested Director without adequate appraisal experience,

to prepare a "fairness opinion" on the proposed Merger;

b. Whether the Individual Defendants, as Officers, Directors and Controlling

Shareholders, breached their fiduciary duty of loyalty in approving and

recommending the merger by claiming reliance on the SCIBELLI

"fairness opinion;"

c. Whether Defendant SCIBELLI breached his fiduciary duty of loyalty by

encouraging and/or permitting the Board of Directors to engage Roberts &

Green as its financial advisor on August 12, 1997;

d. Whether Defendant JACOBS, who was assigned the right to develop or

acquire the Jansen Parcel at no cost to him or to JACOBS

ENTERTAINMENT, breached his fiduciary duty of loyalty by selling

this Option to Purchase the Jansen parcel to the MIRAGE and/or its

subsidiary for a sum of approximately $3.7 million, thereby ending

BOARDWALK's ability to engage in the necessary expansion of the

property or negotiate a merger with, or sale to, a party other than the

MIRAGE, or negotiate a better price with the MIRAGE;

e. Whether Defendant JANSEN breached her fiduciary duty of loyalty as a

Director, Officer and Controlling Shareholder to the BOARDWALK

minority shareholders by receiving $8 million for a one-acre parcel of land

adjacent to the BOARDWALK site in exchange for agreeing to

MIRAGE's offer of $5 per share of BOARDWALK to acquire the

outstanding BOARDWALK shares, a consideration far below the true

value of the shares;

f. Whether Defendants WOODWARD and SPOSATO breached their

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fiduciary duty of loyalty to the shareholders of BOARDWALK by

approving the merger in exchange for lucrative positions for themselves

following the merger, rather than seeking a fair price for the minority

shareholders of BOARDWALK to tender their shares.

g. Whether Defendants MIRAGE and ACQUISITION tortiously induced or

participated in these breaches of fiduciary duty by implementing a scheme

in which they would acquire the stock of BOARDWALK at less than its

true value.

24. The claims of Plaintiff, who is representative of the Class herein, are typical of the

claims of the Class, in that the claims of all members of the Class, including Plaintiff, depend

upon a showing of the acts and omissions of Defendants giving rise to the right of Plaintiff to the

relief sought herein.

25. The named Plaintiff is the representative party for the Class, and is able to, and

will, fairly and adequately protect the interest of the Class. The attorneys for Plaintiff are

experienced and knowledgeable in the field and have successfully represented Class claimants in

other litigation.

26. This action is properly maintained as a class action under Nev. R. Civ. P.

23(b)(1)(B) because prosecution of separate actions by individual members of the Class would

create a risk of adjudications with respect to individual members of the Class that would, as a

practical matter, dispose of the interest of the other members not parties to the adjudications, or

which substantially impair or impede their ability to protect their interests.

27. This action is properly maintained as a class action under NRCP 23(b)(2)

inasmuch as the Defendants have acted or refused to act, as herein more specifically allege, on

grounds which are applicable to the Class and have, by reason of such conduct, made final relief

appropriate with respect to the entire Class, as sought in this action.

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V.

FACTUAL ALLEGATIONS

28. The BOARDWALK CASINO, the second smallest casino on Las Vegas

Boulevard (the "Strip"), possesses among the most valuable real estate in the city . It owned

1,200 feet of frontage on the popular Las Vegas Strip , nestled between two mega-resorts: the

Bellagio and the Monte Carlo. The Bellagio is owned by MIRAGE and the Monte Carlo is co-

owned by MIRAGE.

29. Before the MIRAGE effectuated the merger with BOARDWALK,

BOARDWALK owned and operated the Holiday Inn Casino BOARDWALK located in Las

Vegas, Nevada, on Las Vegas Boulevard near Harmon Avenue . The Holiday Inn Casino

BOARDWALK consists of a 654 room hotel and a 33,000 square foot casino situated on 7.8

acres.

30. In addition to the MIRAGE mega-resorts, between which the Holiday Inn Casino

Boardwalk sits, the BOARDWALK property also was bordered by smaller, neighboring

properties. These included a 1.4 acre parcel previously owned by Bob Elton, ("Nevada Bob

parcel"), a 2.05 acre parcel upon-which the Country Star Restaurant sits, ("the Country Star

parcel"), and a one-acre parcel once owned by the Jansen Family Trust ("the Jansen parcel").

31. BOARDWALK, in addition to owning and operating the Holiday Inn Casino

BOARDWALK, also leased the adjacent shopping center, situated on the Jansen parcel, from

Defendant Jansen. Additionally, the Holiday Inn Casino BOARDWALK contains a small gift

shop under lease to Holiday Gifts, Inc., a Nevada corporation owned by Defendant Jansen.

32. BOARDWALK was a publicly held corporation. Until June of 1998, the

Company's common stock and warrants were traded on Nasdaq under the symbol "BWLK." As

of April 29, 1998, 7,181,429 shares of common voting stock were issued and outstanding.

33. Prior to September, 1996, BOARDWALK was controlled by its founder, majority

shareholder and then Chief Executive Officer, Norm Jansen. Mr. Jansen passed away on January

6, 1997.

34. In contrast to BOARDWALK, MIRAGE is huge, fully owning three massive

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resorts on the Las Vegas Strip: the Bellagio, the Mirage and Treasure Island. In addition,

MIRAGE owns 50 percent of another Strip mega-resort, the Monte Carlo. MIRAGE also owns

and operates the Beau Rivage, a luxury resort in Biloxi, Mississippi, the Las Vegas Golden

Nugget (which has the largest number of guest rooms in Downtown Las Vegas), the Golden

Nugget in Laughlin, Nevada, and various other properties.

Background

35. Prior to the Merger Agreement, BOARDWALK'S gaming business was

struggling. Although located in a very desirable area, the casino was unable to turn a profit in the

two years leading up to the Merger due to stiff competition for the gambling population and

BOARDWALK's own expansion project. In an effort to become more competitive,

BOARDWALK raised capital by selling bonds. Of particular importance was an April 1995

offering where BOARDWALK sold $40 million worth of bonds with a 16 1/2% yield (the

"BOARDWALK bonds") in order to embark on an ambitious expansion project. However,

things did not go as smoothly as anticipated.

36. In 1997, BOARDWALK casino was beleaguered by financial problems. Many

of the problems were caused by BOARDWALK's construction of a new hotel tower, expanded

casino, new restaurant and buffet and new meeting rooms, all of which were completed by June,

1997. Construction during these improvements impeded the flow of foot traffic passing by

BOARDWALK and also blocked access to the casino, harming BOARDWALK's revenues.

37. While BOARDWALK was suffering through the construction of the

improvements to the hotel casino, mega-resorts were being erected around the casino. These

included MGM Grand's New York-New York resort, completed in 1997, the Monte Carlo

completed in 1996, and the Bellagio, completed in October of 1998.

38. By the time Bellagio opened in October, 1998, the BOARDWALK improvements

underway were complete, and access to BOARDWALK not only no longer was impeded, but the

casino was nestled between Las Vegas' most glamorous and popular properties. Had the

directors of BOARDWALK adhered to their fiduciary duties and properly analyzed

BOARDWALK's future instead of their own current self interest, they would have known that

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increased foot traffic that Bellagio, Monte Carlo and New York-New York created would help

BOARDWALK increase its revenues and continue its own planned expansion. At the very least,

BOARDWALK's location between these spectacular attractions would cause the land value to

rise.

The Race Book

39. In or about September, 1995, in an effort to bring more bettors into its Race Book,

the Directors and/or Officers of BOARDWALK developed a scheme whereby large bettors were

given kickbacks from the pari-mutuel wagers they placed at the BOARDWALK Race Book.

40. At that time, horse racing tracks across the country would pay the BOARDWALK

a commission of approximately thirteen cents ($0.13) for every pari-mutuel dollar wagered at the

Race Book, regardless of whether the wager won or lost . The remaining eighty-seven cents

($0.87) went to the race track.

41. To attract more pari -mutuel wagers, the Directors and Officers of the

BOARDWALK entered into secret agreements with a few Race Book patrons whereby the

BOARDWALK would indirectly rebate to these Race Book patrons eleven cents ($0.11) of

every dollar wager they brought into the Race Book.'

' The rebate was couched as a nearly impossible-to-lose, proposition bet whereby the Boardwalkwould alter the odds such that the risk of loss was nearly non-existent. As Deputy Attorney General,Kirk Hendrick illustrated to the Gaming Control Board at its July 23, 1998 hearing:

Let me give you a hypothetical scenario of how this would actually work atthe Boardwalk.

In order for me to get the promotion, I would walk up to the race window onTuesday morning and the ticket writer would tell me that I had a thousanddollars in my incentive account and that I was entitled to receive that moneyback.

The ticket writer would then tell me that I needed-to put up $10 thatSecretariat would beat Glue Factory in a particular race, at the odds of 100to one.In fact, it was so commonly known among the premium players thatoftentimes the patron wouldn't even have to ask for it, the ticket writer wouldjust know he's a premium player, he's entitled to his incentive accountmoney back.

So in our example, here's my $10, my $10 needed to get this money

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42. Accordingly, the Race Book patrons would assemble large wagers from

numerous, individual bettors (both local and out of state), bring these wagers collectively to the

Race Book, and receive 8-12% rebate on their bets, depending on the amount of wagers placed

by the Race Book patron that day. In turn, the patrons would kickback a portion of this rebate to

their bettors, ultimately profiting approximately two to three cents for each dollar wagered.

43. Thus, instead of making the standard thirteen cents per dollar wager, the

BOARDWALK Race Book was only grossing two cents per dollar on all wagers placed by these

back. I'd have to go through the motions of giving $10 at 100 to one odds inorder to get the money back, a thousand dollars on my incentive account. Ofcourse, remember, I'd be getting back my $10 as well.

Now almost every time the race director handpicked one of theseraces. The favorite would beat the longshot. And the favorite should havewon. Think about it. The race director is, or his supervisors if he wasn'taround, were handpicking these match-ups with the clear intent of losing therace. Think about that for a moment.

Any self-respecting race director should be able to consistentlyhandpick a race that he's looking for the odds on the board, pick a race wherea favorite would beat the longshot. Especially considering the fact that if hewas wrong, all it would mean is that it would be more work for him and hisstaff to set up another race in order to rebate the agreed upon percentage backto the premium patron waiting there at the window.

But back to our example. I had to give $10 in order to get mythousand and ten back. But let's look now. This is the careful point I wantyou to look at. Let's look at where my $10 was actually going. Andremember that there has to be a risk of loss and a chance of gain in everyspecific wager. Mr. Godfrey pointed that out just repeatedly to you. Everywager, in order to be a legitimate and specific wager, chance of loss, risk ofgain, both sides.

Of course, if Secretariat won the race, I would get my thousand andten dollars back. Everybody agrees on that. But that's not very telling ofwhether there's a risk of loss, because it came back to me. On the other hand,if Glue Factory, by some miracle actually won the race, where would my $10go? Would the $10 go over to the Boardwalk or would the $10 go over to myincentive account? And I submit to you that the $10 would never go to theBoardwalk. It went into the player's incentive account. Of course itwouldn't have been there long because the player was entitled to get it backalong with the thousand dollars if in fact there had to be a second race. Thefront money would be added to the incentive account. They were told that.They were told if you lost, you're entitled to that money, entitled to it.

Gaming Control Board Hearing, July 23, 1998, pp. 296:24-25; 298:16 - 300:24.

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particular patrons.

44. In order to keep the arrangement secret from the regulatory authorities, the

Directors and Officers failed to inform its shareholders of this scheme and concealed the rebate

in the Corporation's SEC filings. Accordingly, upon a review of the filings, it would

fraudulently appear that the Race Book revenue was growing rapidly, when, in actuality, the

company would never realize standard industry net income from this revenue source. Thus, the

true gross revenue was fraudulently inflated, giving the shareholders the facade that the

corporation was generating for greater net revenue than it actually was, thereby creating the

illusion that the corporation was in far better financial condition than it actually was.

45. Although the scheme was expressly prohibited by NRS 464.075 and NRS

465.092-94 in 1997, it continued at the BOARDWALK.

MIRAGE Wants the Land

46. At the same time BOARDWALK was struggling financially, MIRAGE was

looking for a property on the Strip to build a new mega-resort. A resort of massive magnitude

was necessary for MIRAGE if the Company was going to achieve its goal of 20-percent annual

earnings growth, particularly if that growth was to come on top of the $500 million of annual

cash flow the Bellagio and the Beau Rivage resort MIRAGE was building in Biloxi, Mississippi

would generate. But there were no properties available on the Las Vegas Strip that could

accommodate this type of resort.

47. MIRAGE set its sights on BOARDWALK. BOARDWALK offered 1,200 feet of

frontage on the Strip. MIRAGE already owned 23 acres adjacent to BOARDWALK from an

acquisition of the Dunes hotel-casino and golf course in 1993, and the Bellagio adjacent to

BOARDWALK. If MIRAGE could acquire BOARDWALK and its neighboring lots, including

the Nevada Bob, Country Star and Jansen parcels, the Company would-own a lot nearly the same

size as Bellagio's.

48. MIRAGE, however, had a problem. When BOARDWALK filed its Form 10-Q on

August 15, 1997, its stock was trading at $4.50 per share. To acquire BOARDWALK's shares,

MIRAGE would have to pay a significant premium over the stock's trading price. Paying a

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premium, though, would mean that holders of outstanding warrants for 3.587 million shares,

exercisable at $5 per share, would likely exercise these warrants.

49. In addition, as part of the bond offering, Franklin Funds received 1.908 million

warrants exercisable at $6 per share. When MIRAGE purchased the BOARDWALK Bonds, it

allowed Franklin Funds to keep its warrants because, (a) MIRAGE knew that it would offer only

$5 per share to take over BOARDWALK, rendering the warrants worthless; and (b) if MIRAGE

were to acquire the warrants from FRANKLIN FUNDS, they would have been forced by federal

securities laws to report their interest in BOARDWALK, thereby uncloaking its scheme.

MIRAGE needed secrecy; if investors knew it was MIRAGE who was buying the Bonds, the

price of BOARDWALK stock would have shot up, making the exercise of the warrants likely.

50. Any offer for BOARDWALK shares above $5 would mean that these warrant

holders would likely exercise, and MIRAGE would have to pay additional millions to acquire the

shares represented by the warrants. Aside from the extra costs MIRAGE would incur by paying

for the shares represented by warrants if the warrants were exercised, the exercising of these

warrants would have had the effect of diluting the ownership interests of BOARDWALK's

controlling shareholders, JANSEN and JACOBS. If MIRAGE made an offer of $7 per share for

BOARDWALK stock, the warrant holders would exercise, increasing the outstanding

BOARDWALK stock from 7.1 million shares to nearly 13 million shares, and the voting power

would have shifted away from JANSEN and JACOBS, who would then have owned

substantially less than 50% of BOARDWALK stock.

51. Thus, MIRAGE, to prevent these additional costs and to protect their ability to cut

a deal with BOARDWALK's controlling shareholders, could offer no more than $5 for

BOARDWALK's shares. Without the willingness of holders of majority voting control to make

a side deal with MIRAGE, MIRAGE was likely to have to pay more than $7 per share, given

BOARDWALK's outstanding real estate and prospects. That is, if MIRAGE was able to acquire

BOARDWALK at all, with competitors such as MGM Grand likely to be willing to enter a

bidding war over BOARDWALK simply to prevent MIRAGE from gaining the land. After

reading BOARDWALK's financial statements, MIRAGE's Chief Financial Officer, Daniel Lee,

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knew that, without some action by MIRAGE to depress BOARDWALK's value, an offer of no

more than $5 for the shares would be too low.

52. To acquire BOARDWALK, MIRAGE derived a scheme in which it could buy out

BOARDWALK's minority shareholders at a discount to the value that Defendants themselves

received. The first part of the scheme involved establishing a blatant artifice and using agents

who would not disclose the true identity of their clients to buy out the properties. The main

thrust of the scheme was, however, inducing BOARDWALK Directors and Controlling

Shareholders to ensure the price per share of BOARDWALK stock offered by MIRAGE and

accepted by BOARDWALK would be depressed well below the true value of the shares.

MIRAGE set out to, and succeeded in, inducing the Individual Defendants to breach their

fiduciary duties to the shareholders by satisfying the individual needs of the Directors to the

detriment of the minority shareholders..

The MIRAGE Scheme,

53. MIRAGE's plan to acquire BOARDWALK originated with Daniel Lee, and was

enthusiastically supported by Steve Wynn, the Chairman, President, and Chief Executive Officer

of MIRAGE. Lee saw a property that MIRAGE could use to acquire 1,200 feet of frontage on

the Strip, connecting various other plots owned or soon to be owned by MIRAGE. He reasoned

that with the completion of the neighboring Bellagio resort, the land value would soon rise

precipitously. Lee pursued, on behalf of MIRAGE, an elaborate and deceptive plan to acquire

the BOARDWALK bonds, BOARDWALK itself, the odd-shaped 1.4 acre Nevada Bob parcel,

and the two-acre Country Star parcel under a long-term lease. Secrecy was of the utmost

importance to prevent any one parcel owner from gaining a sky-rocketing "hold-out" value. Lee

noted that "there are people who would buy up property just because they hate us."

54. First, Lee offered 80 cents on the dollar to Franklin Funds, which was the lone

holder of the BOARDWALK Bonds. Lee did not take this action directly, for fear of disclosure

of MIRAGE's interest. Instead, he arranged for Pauline Yoshihashi, an investment banker from

Donaldson, Lufkin and Jenrette ("DLJ"), to make the offer on behalf of her anonymous clients.

Yoshihashi reported back to Lee that there were some problematic covenants in the indenture,

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and that Franklin Funds was close to a deal to sell the Bonds for $50 million to a third party

based in Europe. Lee responded by topping the offer, and MIRAGE acquired the note for $50.5

million. Since Lee had privately set MIRAGE's price at $100 million to acquire BOARDWALK

and the Nevada Bob and Country Star parcels, he had to depress the price of BOARDWALK's

outstanding equity to $35 million, much less than fair market value, for MIRAGE to proceed

with its acquisition plans.

55. MIRAGE, at Lee's direction, quietly moved on the other parcels. To sink the

value of BOARDWALK's equity to the $35 million range, MIRAGE had to undermine

BOARDWALK's expansion plan. Lee made an offer to "Nevada Bob" Elton through a wholly-

owned MIRAGE subsidiary, but was rebuked because the offer was less than an outstanding

offer made by BOARDWALK itself as part of its expansion. Lee quickly topped the offer, and

bought the Elton parcel of 1.4 acres for $9.4 million, effectively cutting off BOARDWALK's

plans to expand north.

56. Again, the offer on the Nevada Bob parcel was made in a way that it could not be

traced back to MIRAGE. MIRAGE created a company called Restaurant Ventures of Nevada,

Inc. ("Restaurant Ventures"), hired a start-up real estate agent and made an offer of the type a

restaurant company would make, all to avoid detection of MIRAGE's role.

57. Next, MIRAGE, again through Restaurant Ventures, moved on the Country Star

parcel, offering $1.5 million to buy out the lease. However, the Country Star CEO, Dan Rubin,

perhaps sensing who was really behind the offer, refused. Lee knew that if Rubin sold his lease

to an enemy of MIRAGE, the plan could unravel. MIRAGE knew for instance, that it had

similarly blocked MGM Grand from expanding the New York-New York resort, and wanted to

avoid a "payback" in the highly competitive casino gaming business. Eventually MIRAGE

acquired the Country-Star lease for $1,650,000.

58. MIRAGE purposely avoided all public disclosure of the existence of Restaurant

Ventures and the acquisitions made by MIRAGE -- including in its filings with the Securities and

Exchange Commission (the "S.E.C.").

59. BOARDWALK was now a company under siege. Not only did MIRAGE hold

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the note on the BOARDWALK bonds, but the land to the north had been acquired by MIRAGE,

and MIRAGE had previous ownership interests in property on all sides . MIRAGE, however,

was yet to own everything it needed. Lee had still to acquire the Jansen parcel adjacent to

BOARDWALK, a key to MIRAGE's development plans.

The Jansen Parcel

60. In September, 1996, DIVERSIFIED, a company controlled by JACOBS

ENTERTAINMENT, obtained in excess of 10% ownership in BOARDWALK by purchasing

newly issued shares, a portion of JANSEN's shares, and options to purchase more of JANSEN's

stock. Defendant JACOBS was, at all relevant times, and Plaintiff believes and alleges that he

remains, Chairman and Chief Executive Officer of JACOBS ENTERTAINMENT.

61. As stated above, adjoining the BOARDWALK HOTEL & CASINO is a one-acre

parcel of land upon which various office buildings presently sit. The parcel was owned by the

Norbert W. Jansen and Avis Jansen Family Trust. The Jansens intended that BOARDWALK use

the parcel for necessary expansion of BOARDWALK. An Option to Purchase and/or develop

the Jansen parcel was conveyed to BOARDWALK pursuant to the terms of a lease agreement

dated October 1, 1996, by and between the Family Trust and BOARDWALK.

62. On October 29, 1997, two months before MIRAGE and BOARDWALK

announced the merger, while Lee's plan to acquire BOARDWALK and its surrounding parcels

was well underway, citing a need for an immediate capital infusion of $3.25 million to pay

interest due on its $40 Million Note Indenture and to retire an outstanding $600,000 obligation,

BOARDWALK entered into a Memorandum of Understanding ("Memorandum") by and among

BOARDWALK, DIVERSIFIED, JACOBS ENTERTAINMENT, and JANSEN. The parties

agreed in pertinent part as follows:

a. BOARDWALK issued, and JACOBS and JANSEN purchased 6% Non-

voting Cumulative Preferred Shares, Series A of BOARDWALK

("Preferred Shares"). JACOBS purchased 2,650 Preferred Shares, and

JANSEN purchased 600 Preferred Shares, at $1,000 per share.

b. DIVERSIFIED agreed to relinquish its rights to convert all or any portion

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of the unpaid balance of a $5,000,000 convertible subordinate note issued

on September 24, 1996 by BOARDWALK to Diversified into shares of

BOARDWALK common stock.

c. Also, under the Memorandum, BOARDWALK granted JACOBS

ENTERTAINMENT an option to acquire up to an additional 15,000

Preferred Shares at a purchase price of $1,000 per share, such option to

remain outstanding for a period of two years.

d. AVIS JANSEN conveyed to JACOBS ENTERTAINMENT an Option to

Purchase the adjacent one-acre parcel owned by AVIS JANSEN. The

option was conveyed to JACOBS ENTERTAINMENT via this

Memorandum "[i]n consideration of JACOBS [ENTERTAINMENT]'s

commitment of time and resources to explore the feasibility of a

development with a total cost in excess of $20 Million on the site."

63. The Memorandum also contains the following recitation:

Boardwalk and Jansen are interestedin providing Jacobs [Entertainment]with the means to develop the officebuilding property in a manner thatwill be beneficial to Boardwalk (pg.1,¶D);

And the following limitation:

Jacobs [Entertainment] may assignits rights and delegate its obligationsunder this Memorandum or any ofthe definitive agreements executedand delivered pursuant to thisMemorandum to Black HawkGaming & Development Company,Inc. or any other corporation, limitedliability company, partnership, trustor other entity which is under -common control with orcontrolled , through equityownership and/or voting control,by Jacobs [Entertainment] orJeffrey P. Jacobs. (Page 5-6, 1 7.1,emphasis added)

64. JACOBS ENTERTAINMENT paid no monetary consideration for the option; in

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fact, the Memorandum further provided that the BOARDWALK would reimburse JACOBS

ENTERTAINMENT for up to $40,000 in fees and costs expended on the exploration of the

feasibility of such development. The limitation in the Memorandum meant that JACOBS was

unable to alienate the purchase option on the site.

65. In or about November, 1997, despite the express terms of this agreement,

JACOBS, as Chairman, CEO, and agent of JACOBS ENTERTAINMENT, assigned or otherwise

conveyed the purchase option to MIRAGE and/or its subsidiary, ACQUISITION, for $3.735

million . Neither MIRAGE nor ACQUISITION are, or ever were, "controlled ... by JACOBS

[ENTERTAINMENT] or JEFFREY P. JACOBS." Without this parcel, needed expansion of the

BOARDWALK property was impossible.

MIRAGE Goes to BOARDWALK

66. MIRAGE was now in a position to approach BOARDWALK about a merger and

to acquire the remaining parcels.

67. Lee and MIRAGE knew that any acquisition of BOARDWALK that paid more

than $5 per share would have added substantial costs to MIRAGE, because the warrant holders

could exercise their warrants and then MIRAGE would have to pay for those shares as well as

the outstanding common stock. MIRAGE had already employed deceptive means to shrink the

value of BOARDWALK by surreptitiously acquiring the BOARDWALK bonds and the

surrounding parcels . To accomplish the purchase of BOARDWALK at a deflated price,

MIRAGE sought and induced members of BOARDWALK ' s Board of Directors to participate in

and approve the undervaluing and sale of BOARDWALK.

68. On or about December 11, 1997, MIRAGE representatives met with

BOARDWALK Directors , Officers and financial advisors to discuss merger possibilities . At this

time, MIRAGE disclosed to BOARDWALK its acquisition of the adjacent properties and the

BOARDWALK bonds.

69. Informal negotiations continued over the next week during which a $5/share price

was proposed.

70. Defendant SCIBELLI knew of MIRAGE ' s plan well in advance of the December,

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1997 public offer. During 1997, he met with potential purchasers of BOARDWALK warrants,

prompting investors to purchase the warrants because an $8 - $10 per share acquisition of

BOARDWALK was imminent. In this way, SCIBELLI and his associates and friends, with

inside knowledge of the merger between MIRAGE and BOARDWALK, unloaded

BOARDWALK warrants, including those of customers of R&G, knowing or recklessly

disregarding that the warrants would expire worthless. In fact, SCIBELLI owned a substantial

number of BOARDWALK warrants, exercisable at $5, which he knew would expire worthless.

On information and belief, Plaintiff alleges that part of the $450,000 price for the "fairness

opinion" R&G rendered represented compensation for SCIBELLI's worthless warrants.

71. On December 19, 1997, BOARDWALK asked SCIBELLI's company, R & G, to

act as financial advisor in connection with the Merger. Specifically, R & G was asked to render

an opinion regarding the fairness of the consideration proposed to be paid to the Shareholders in

the Merger. R&G had no experience, and was, therefore, unqualified, to render fairness opinions

or, more particularly, real estate appraisals. For this task, BOARDWALK agreed to pay

$450,000 to R & G.

72. On or about December 22, 1997, MIRAGE RESORTS formally submitted to

BOARDWALK a Merger proposal for the cash purchase of all shares of BOARDWALK

common stock for $5 per share. Additionally, MIRAGE agreed to a deferral of the payment on

the BOARDWALK bonds until September 30, 1998.

73. On December 22, 1997, a mere three days after the Board asked R & G to conduct

the fairness appraisal, SCIBELLI delivered to the Board of Directors a written opinion that the

Merger was fair from a financial standpoint.

74. No other appraisal of the property or corporate assets or fairness opinion was ever

sought by the Board of Directors nor was any other appraisal rendered.-

75. Even if the merger had closed for the $8 per share minimum that SCIBELLI had

promised the warrant purchasers, acquiring the additional shares due to the exercise of the

warrants alone would have cost MIRAGE an additional $10.7 million for the warrants that were

exercisable at $5, plus another $3.8 million for the Franklin Fund shares from their warrants.

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This amount, plus the extra money MIRAGE would have had to pay for the 7. 1 million shares

outstanding of BOARDWALK common stock would have driven up MIRAGE's purchase price

of BOARDWALK to approximately $35.8 million more than the $35.9 million MIRAGE had

offered. The price MIRAGE would have had to pay for BOARDWALK would have doubled,

assuming there was no bidding war that could have driven the price even higher.

The Merger And Related Transactions

76. On December 22, 1997 MIRAGE and BOARDWALK publicly announced that

they had entered into an agreement whereby ACQUISITION, a wholly owned MIRAGE

subsidiary, and BOARDWALK would merge. BOARDWALK shareholders were to receive $5

cash per share under the terms of the agreement.

77. Simultaneously, MIRAGE entered into separate agreements with Jansen and the

Jacobs Sellers to acquire all of their common and preferred stock in BOARDWALK, a

subordinate note issued by BOARDWALK, an adjacent parcel of land leased by BOARDWALK

and certain other rights. Pursuant to these agreements, MIRAGE acquired 53 percent of

BOARDWALK's common shares outstanding; a majority sufficient to approve the announced

Merger at $5 per share. Contrary to the financial information made available in

BOARDWALK's Proxy Statement on Form 14(a) (the "Proxy Statement") detailing the terms

of the Merger, Mr. Wynn stated that "the BOARDWALK is profitable.. ." in the December 22

announcement.

78. WOODWARD, too, supported the deal, and in return was allowed to keep his

position as director, which, at the time, paid him approximately $40,000 per month.

79. MIRAGE achieved approval of a grossly undervalued rate for BOARDWALK's

shares by inducing BOARDWALK's insiders to accept terms that favored them personally, at the

expense of BOARDWALK's minority shareholders. For example: -

a. MIRAGE lured JACOBS by paying $3.735 million for JACOBS

ENTERTAINMENT's conveyance of purchase option of the Jansen

parcel, despite explicit terms in the Memorandum granting the option to

JACOBS. The amount JACOBS received for conveyance of the option to

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MIRAGE more than covered any losses JACOBS may have suffered from

his purchase of $2,650 preferred shares and the difference between the $7

per share he paid to purchase his stock versus the $5 price offered by

MIRAGE.

b. JANSEN entered into a series of self-interested agreements with

MIRAGE. Among these was a deal that paid her $8 million for a one-acre

parcel of land adjacent to BOARDWALK. In contrast, the offer for

BOARDWALK's 7.8 acres was $35.9 million, only approximately $4.6

million per acre.

c. SCIBELLI's Company, R&G, received a $450,000 fee to perform a

fairness opinion and appraisal that R&G was not qualified to make.

d. WOODWARD was allowed to keep his position as director, which paid

and continues to pay him $50,000 per month.

e. SPOSATO was given a position as Chief Financial Officer at

ACQUISITION.

BOARDWALK's 1997 Financial Problems

80. Despite the low amount of MIRAGE's offer, and because of the inducements

received by BOARDWALK's insiders, BOARDWALK issued its Proxy Statement on April 30,

1998 recommending its shareholders vote for the merger. The Proxy Statement stated that a

sharp increase in competition had resulted in substantially less in earnings than the Company had

anticipated for 1996 and 1997 . The Proxy Statement said that the Company did not have the

funds to complete its master expansion plans , which would have included a porte cochere and a

pedestrian bridge from the parking garage . It also stated that poor earnings and technical default

on a covenant of its First Mortgage Notes made it "expensive for the Company to borrow

additional funds and unlikely that it would be able to do so." It wasn't until the merger was

announced that BOARDWALK painted such a dire picture for its shareholders.

81. In 1997, BOARDWALK was struggling to meet its payment obligations on the

$40,000,000 debt. The annual service requirement on the debt was $6,600,000 . BOARDWALK

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reported losses in net income and earnings per share throughout the year. The Company,

however, had assured its investors throughout the year that it had the capacity to meet its debt

obligations.

82. For example, in BOARDWALK's Report on Form 10-Q filed on February 14,

1997 with the S.E.C. for the fourth quarter of 1996, the Company stated that:

Management believes that the combination of expected cash flowsfrom operations in 1997, and the available borrowing capacity aresufficient to meet the Company's obligations as they become dueduring fiscal 1997. The outstanding warrants to purchase commonstock at December 31, 1996 also represent a potential significantsource of capital to the Company, although management cannotcontrol or accurately predict the timing of proceeds from theexercise of warrants.

83. In the Form 10-Q filed on May 14, 1997 with the S.E.C. for the first quarter of

1997, BOARDWALK again assured investors that all was well: a combination of its expected

cash flows, available borrowing capacity and potential source of income from the outstanding

warrants would enable the Company to meet its obligations, and the Company would be able to

cure the default with its First Mortgage Lender by year's end.

84. BOARDWALK's Report on Form 10-Q filed with the SEC on August 15, 1997,

reemphasized that a combination of cash flow and available borrowing capacity would be

sufficient for the Company to meet its obligations. This Report, however, described neither the

outstanding warrants nor that Jacobs had an option to purchase $15,000 more in preferred stock

as potential sources of capital.

85. The August 15, 1997 filing also announced an anticipated increase in cash flow

for 1997:

With the completion of the new hotel tower and expanded casino,restaurant, buffet, which opened March 21, 1997, and meetingrooms, completed in June 1997, and the presence of its neighbors(Monte Carlo - June 21, 1996 and New York, New York, -January3, 1997), management expects to generate cash flows fromoperations to improve its working capital position in fiscal 1997.

86. By the end of 1997, BOARDWALK, by its own representations , had stated that

the problems that reduced revenues were disappearing. The expansion project that impeded

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access to BOARDWALK was completed ; two spectacular mega-resorts, the Monte Carlo and

New York-New York, were completed nearby, and the magnificent Bellagio was slated to open

right next door to BOARDWALK in October, 1998 . MIRAGE' s own executives noted the

positives of these developments for BOARDWALK. Daniel Lee acknowledged that with the

completion of the Bellagio , the land value for BOARDWALK would rise. Steven Wynn stated

in December of 1997 that the BOARDWALK casino already was operating profitably. The

Company 's about-face in the Proxy Statement can be directly attributed to the inducements

provided by MIRAGE. The position the Proxy Statement took in recommending the merger at

the depressed rate of $5 per share ignored that BOARDWALK' s revenues were likely to

increase, making the payments on the BOARDWALK bonds easier to make , ignored that R&G's

"fairness opinion," which itself lacked independence , reflected none of these positive

developments and that the opinion was made by a Company unqualified to render it, and ignored

that, at the very least, BOARDWALK's land value would rise because of the attractions that

popped up around it.

87. A special shareholders' meeting was held on May 27, 1998, for the purpose of

recommending and approving the- Merger.

88. At the meeting, plaintiff COHEN was acknowledged by WOODWARD, who, as

President, was presiding over the meeting. COHEN was given the floor to speak and question

the Board before the BOARDWALK shareholders and MIRAGE representatives.

89. COHEN asked Defendant WOODWARD and other present Board Members why

the Board had not obtained an independent appraisal for the property. COHEN presented the

Board with the curriculum vitae for a company qualified to conduct such an appraisal. COHEN

had ascertained that such an appraisal would cost a maximum of twenty thousand dollars

($20,000).

90. WOODWARD rejected the idea, explaining that, although the Board was

uncertain of SCIBELLI's qualifications to perform such a valuation, the Board preferred that the

business go to SCIBELLI because, as a recent Board Member, though inexperienced in

evaluating publicly traded Strip properties, he was familiar with the corporation and could act

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quickly. COHEN also inquired whether the Board obtained any other bids for the appraisal and

how the Board arrived at the $450,000 fee. WOODWARD replied that no additional bids were

sought, that the $450,000 was the fee requested by SCIBELLI, and it "seemed fair."

91. Additionally, COHEN inquired of WOODWARD and the Board the reasons why

the Board permitted Jacobs to sell his Option to Purchase the Jansen Parcel to the MIRAGE.

WOODWARD conveyed to COHEN that the Board did not believe it had any recourse, and he

admitted that Jacobs' sale of the Option tied the BOARDWALK's hands and left it with no

choice but to sell to the MIRAGE. More particularly, WOODWARD stated: "Mr Jacobs, acting

in his own self interest as a businessman , sold the right to the MIRAGE. After that transaction,

BOARDWALK was completely boxed in and had no choice but to take this deal."

92. At the special meeting of stockholders, with JANSEN, JACOBS and others

voting in favor of the Merger as required by their simultaneously executed individual

agreements, the Merger between ACQUISITION and BOARDWALK was consummated. The

Merger was approved by approximately 74% of the outstanding shares of common stock.

BOARDWALK shareholders received $5 in cash for each outstanding share. Effective as of

June 30, 1998, BOARDWALK became a wholly-owned subsidiary of MIRAGE and was no

longer publicly traded as an independent entity.

93. As Steve Wynn acknowledged in December, 1997, the BOARDWALK casino

was operating profitably.

VI.

FIRST CLAIM FOR RELIEF

(Breach of Duty of Loyalty- JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD)

94. Plaintiff repeats and realleges each and every allegation contained above and

incorporates the same as set forth herein.

95. Defendants JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD

were, at all times relevant hereto, the duly elected and acting members of the board of directors

of BOARDWALK, and were acting in their capacities as directors at the time of the transactions

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as herein set forth.

96. As Directors , JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD

had a fiduciary duty of loyalty to the shareholders of BOARDWALK. This duty included the

responsibility to avoid self-dealing and/or the authorization of transactions in which he had an

independent and beneficial interest.

97. By entering into agreements with MIRAGE and ACQUISITION whereby

JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD received inducements to

approve a grossly undervalued price per share for the minority shareholders of BOARDWALK

to tender their stock in the Company, JACOBS, JANSEN, SCIBELLI, SPOSATO and

WOODWARD breached their fiduciary duty of loyalty to Plaintiff and the Class.

98. Specifically, JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD

accepted terms that favored them personally, at the expense of BOARDWALK's minority

shareholders . For example:


ENTERTAINMENT'S conveyance of purchase option of the Jansen






MIRAGE.




BOARDWALK's 7.8 acres was $35.9 million, only approximately $4.6

million per acre.



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ACQUISITION.

99. In return, Defendants, JACOBS, JANSEN, SCIBELLI, SPOSATO and

WOODWARD and each of them authorized and/or ratified the retention of Roberts & Green to

provide a "fairness opinion" on the merger despite the company's lack of experience in public

corporation valuations and clear lack of independence. Additionally, the Defendants approved

and adopted the Merger Agreement and the transactions contemplated thereby, though the $5 per

share value was a substantial underestimation of the true value of the corporation.


negligently and intentionally breached and/or failed to perform their duties as directors and/or

officers in that they permitted the activities set forth above to transpire. Plaintiff and the Class

thereby suffered great loss, the value of the stock of Plaintiff was greatly reduced, and the other

minority shareholders were similarly damaged thereby, in excess of $10,000. Additionally, as

Defendants' conduct was intentional, malicious, and/or fraudulent, Plaintiff is entitled to punitive

damages in an amount in excess of $10,000.

101. Plaintiff has been forced to retain the legal services of Harrison, Kemp & Jones,

Chartered, and Berger & Montague, P.C., to pursue this claim, and is entitled to recover

reasonable attorney's fees therefore.

VII.

SECOND CLAIM FOR RELIEF

(Breach of Duty of Loyalty - SCIBELLI)

102. Plaintiff repeats and realleges each and every allegation -contained above and

incorporates the same as set forth herein.

103. Asa Director for the BOARDWALK from February 11, 1994 to October 31,

1997, Defendant SCIBELLI owed a duty of loyalty to the BOARDWALK and its shareholders.

This duty included the responsibility to avoid self-dealing and/or the authorization of

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transactions in which he had an independent and beneficial interest.

104. By permitting and/or encouraging the Board of Directors to engage Roberts &

Green (a company in which SCIBELLI was President), as its financial advisor on August 12,

1997, whereby Roberts & Green was ultimately paid $450,000 a greatly inflated price - to

conduct a fairness evaluation of the MIRAGE Merger Agreement and its attendant transactions,

SCIBELLI acted in his own self-interest and that of his independent company, Roberts & Green,

and thereby breached his duty of loyalty to BOARDWALK and its shareholders.

105. Such breach resulted in the payment of a sum of $450,000 for a "fairness opinion"

that SCIBELLI was unqualified to render.

106. Such non-independent opinion damaged BOARDWALK and its Plaintiff

shareholders in excess of $10,000, in that it resulted in 1) payment of an unreasonable, sum by

the corporation; and 2) the Board's rendering of the erroneous opinion that the proposed Merger

Agreement was, indeed, fair, and the ultimate sale of the corporation at a price substantially

below fair value. As Defendant's conduct was intentional, malicious, and/or fraudulent, Plaintiff

is entitled to punitive damages in an amount in excess of $10,000. Additionally, Plaintiff has

been forced to retain the legal services of Harrison, Kemp & Jones, Chartered and Berger &

Montague, P.C., to pursue this claim, and is entitled to recover reasonable attorney's fees

therefore.

VIII.

THIRD CLAIM FOR RELIEF

(Breach of Fiduciary Duty

-- DIVERSIFIED, JACOBS ENTERTAINMENT, JACOBS and JANSEN)

107. Plaintiff repeats and realleges each and every allegation contained above and

incorporates the same as set forth herein. -

108. As Controlling Shareholders of BOARDWALK during all times relevant to this

action, Defendants JACOBS and JANSEN owed a fiduciary duty to BOARDWALK's minority

shareholders. This duty included the responsibility to avoid using their voting power to engage in

self-dealing at the expense of the minority shareholders.

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109. DIVERSIFIED, JACOBS ENTERTAINMENT and JACOBS (collectively

"JACOBS") entered into an agreement conveying JACOBS' Option to Purchase the one-acre

Jansen Parcel, adjacent to BOARDWALK to MIRAGE and/or its subsidiary, despite the terms of

the Memorandum granting JACOBS the Option, for a sum of approximately $3.7 million. In

exchange for this benefit, JACOBS entered into an agreement with MIRAGE to sell his shares to

MIRAGE for $5 per share and to approve the Merger Agreement that provided only $5 per share

to the minority shareholders of BOARDWALK.

110. By selling this Option to Purchase the Jansen parcel to the MIRAGE and/or its

subsidiary for a sum of approximately $3.7 million as an inducement to accept merger terms that

were unfair to BOARDWALK's minority shareholders, JACOBS acted in his own self-interest

and to the detriment of Plaintiff and the Class, and effected a breach of JACOBS' fiduciary duty

as a controlling shareholder to BOARDWALK's minority shareholders.

111 JANSEN entered into a series of self-interested agreements with MIRAGE.

Among these was a deal that paid her $8 million for a one-acre parcel of land adjacent to

BOARDWALK. In contrast, the offer for BOARDWALK's 7.8 acres was $35.9 million, only

approximately $4.6 million per acre. By entering into this agreement with MIRAGE whereby

JANSEN would receive $8 million for one acre of land as an inducement to accept merger terms

that were unfair to BOARDWALK's minority shareholders, JANSEN acted in her own self-

interest and to the detriment of Plaintiff and the Class, and effected a breach of JANSEN's

fiduciary duty as a controlling shareholder to BOARDWALK's minority shareholders.

112; Such breach of JACOBS' and JANSEN's fiduciary duty as controlling

shareholders to BOARDWALK's minority shareholders damaged Plaintiff and the Class in

excess of $10,000 the sale of the minority shareholders' BOARDWALK stock at a price

substantially below fair value. As Defendant's conduct was intentional,-malicious, and/or

fraudulent, Plaintiff is entitled to punitive damages in an amount in excess of $10,000.

Additionally, Plaintiff has been forced to retain the legal services of Harrison, Kemp & Jones,

Chartered, and Berger & Montague, P.C., to pursue this claim, and is entitled to recover

reasonable attorney's fees therefore.

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IX.

FOURTH CLAIM FOR RELIEF

(Tortious Interference With Fiduciary Duty

- MIRAGE RESORTS, INCORPORATED and MIRAGE ACQUISITION SUB, INC.)

113. Plaintiffs repeat and reallege each and every allegation contained above and

incorporate the same as set forth herein.


were, at all times relevant hereto, the duly elected and acting members of the board of directors

of BOARDWALK, and were acting in their capacities as directors at the time of the transactions

as herein set forth.

115. Additionally, Defendants JACOBS and JANSEN were Controlling Shareholders

of BOARDWALK at the time of the transaction as herein set forth. As Directors and Controlling

Shareholders, JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD had a fiduciary

duty of loyalty to the shareholders of BOARDWALK. This duty included the responsibility to

avoid self-dealing and/or the authorization of transactions in which they had an independent and

beneficial interest.

116. By entering into agreements with MIRAGE and ACQUISITION whereby

JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD received inducements to

approve a grossly undervalued price per share for the minority shareholders of BOARDWALK

to tender their stock in the Company, JACOBS, JANSEN, SCIBELLI, SPOSATO and

WOODWARD breached their fiduciary duty of loyalty to Plaintiff and the Class.

117. Specifically, JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD

accepted terms that favored them personally, at the expense of BOARDWALK's minority

shareholders. For example: -


ENTERTAINMENT's conveyance of purchase option of the Jansen



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MIRAGE.




BOARDWALK' s 7.8 acres was $35.9 million, only approximately $4.6

million per acre.






ACQUISITION.

In return, Defendants, JACOBS, JANSEN, SCIBELLI, SPOSATO and

WOODWARD and each of them authorized and/or ratified the retention of Roberts & Green to11provide a "fairness opinion" on the merger despite the company's lack of experience in public

corporation valuations and clear lack of independence . Additionally, the Defendants approved

and adopted the Merger Agreement and the transactions contemplated thereby, though the $5 per

share value was a substantial underestimation of the true value of the corporation.

118. Defendants MIRAGE and ACQUISITION induced Defendants JACOBS,

JANSEN, SCIBELLI, SPOSATO and WOODWARD to breach their fiduciary duties to

BOARDWALK's minority shareholders by setting up and implementing the scheme whereby

MIRAGE would be able to acquire BOARDWALK at $5 per share rather than at the true value

of the shares.

119. Defendants MIRAGE and ACQUISITION participated in the breach of fiduciary

duty by Defendants' JACOBS, JANSEN, SCIBELLI, SPOSATO and WOODWARD by

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negotiating and entering into a Merger Agreement whereby BOARDWALK shareholders would

receive only $5 per share, significantly less than the true value of the shares.

120. Additionally, as Defendants' conduct was intentional, malicious, and/or

fraudulent, Plaintiffs are entitled to punitive damages in an amount in excess of $ 10,000. Plaintiff

has not made a demand on the board of directors of defendant corporation that an action be

brought to obtain redress for defendant corporation for the above-described wrongful acts

because such action would be futile, as this board of directors no longer exists. Plaintiff has been

forced to retain the legal services of Harrison, Kemp & Jones, Chartered, and Berger &

Montague, P.C., to pursue this claim, and is entitled to recover reasonable attorney's fees

therefore.

X.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and/or severally,

where applicable in each claim for relief as follows:

A. First Claim for Relief against Defendants JACOBS, JANSEN, SCIBELLI, SPOSATO

and WOODWARD:

1. General, special, and compensatory damages in an amount in excess of $ 10,000;

2. Punitive Damages in excess of $10,000;

3. Reasonable attorneys fees and costs of suit;

4. Any further and additional relief that this Court may deem just and equitable.

B. Second Claim for Relief against Defendant SCIBELLI:

1. General, special, and compensatory damages in an amount in excess of $10,000;


3. Reasonable attorneys fees and costs of suit; -


C. Third Claim for Relief against Defendants DIVERSIFIED, JACOBS

ENTERTAINMENT, JACOBS and JANSEN:

1. General, special, and compensatory damages in an amount in excess of $10,000;

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D. Fourth Claim for Relief against Defendants MIRAGE RESORTS , INCORPORATED

AND MIRAGE ACQUISITION SUB, INC.:

1. General , special, and compensatory damages in an amount in excess of $10,000;



XI.

DEMAND FOR JURY TRIAL

Plaintiffs herein demand a trial by jury on all issues so triable.

DATED this 28`h day of September, 1999.

HARRISQ MP & JONES , CHARTERED

J! $1ahdall o , sq.evada Bar # M927

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Jennifer C. Popick, Esq.Nevada Bar # 006456600 Bank of America Plaza3b0 South Fourth StreetLas Vegas, Nevada 89101

P:\USERSUCPWCTIVE FILES\Boardwalk\FIRST .AMENDED.Complaint.filed.wpd

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ORIGINAL Ju t4 c u.primi Tourt of t4P

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