UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 29, 2014
EMPIRE RESORTS, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware |
|
001-12522 |
|
13-3714474 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
|
|
c/o Monticello Casino and Raceway, 204 State
Route 17B, P.O. Box 5013,
Monticello, NY |
|
12701 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrants telephone number, including area code: (845) 807-0001
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. |
Entry into a Material Definitive Agreement |
Effective as of June 30, 2013 (the
Closing Date), the Company, Kien Huat Realty III Ltd., Colin Au Fook Yew and Joseph DAmato (the Company Parties) entered into a Settlement Agreement and Release (the Settlement Agreement) with Stanley
Stephen Tollman (Tollman) and Bryanston Group, Inc. (Bryanston Group and, together with Tollman, the Bryanston Parties). Pursuant to the Settlement Agreement, the Company Parties and the Bryanston Parties
(together, the Settlement Parties) agreed to the settlement of certain claims relating to shares of Series E Preferred Stock of the Company (the Preferred Stock) held by the Bryanston Parties and that certain Recapitalization
Agreement, dated December 10, 2002, by and between, among others, the Bryanston Parties and a predecessor to the Company, pursuant to which the Bryanston Parties acquired the Preferred Stock.
In consideration for the mutual release of all claims, the Company agreed to redeem the Preferred Stock from the Bryanston Parties, and the
Bryanston Parties agreed to sell the Preferred Stock to the Company, in accordance with an agreed-upon schedule and purchase price (the Redemption Schedule) and based upon the closing by the Company of third party financing in an
aggregate amount sufficient to enable the Company to complete the construction of its planned gaming facility in Sullivan County, New York (the Concord Event).
Effective May 29, 2014, the Settlement Parties entered into a side letter amendment to the Settlement Agreement (the Letter
Agreement), pursuant to which the Redemption Schedule was revised. As per the Letter Agreement, the Company may, in its sole discretion redeem the Preferred Stock prior to the occurrence of the Concord Event at a purchase price consistent with
the Redemption Schedule notwithstanding whether a Concord Event has occurred (Early Redemption). Moreover, the Company shall be required to redeem the Preferred Stock upon being awarded a gaming facility license by the New York State
Gaming Commission and paying the required license fee at a purchase price consistent with the Redemption Schedule notwithstanding whether a Concord Event has occurred (Mandatory Redemption). Unless and until an Early Redemption or
Mandatory Redemption occurs, the existing terms and conditions of the Settlement Agreement remain unaffected and the obligations unmodified.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
The Company entered into Amendment No. 1 to the Employment Agreements
(collectively the Employment Agreement Amendments) of each of Joseph A. DAmato, the Chief Executive Officer (DAmato), Laurette J. Pitts, the Senior Vice President, Chief Operating Officer and Chief Financial
Officer (Pitts) and Nanette L. Horner, the Senior Vice President, Chief Counsel and Chief Compliance Officer of the Company (Horner and, together with DAmato and Pitts, the Executives). The Employment
Agreements of each of Pitts and Horner were amended to: (i) extend the termination date of the Employment Agreements, (ii) update the base salary and (iii) implement changes in title, as applicable, in accordance with the table below:
|
|
|
|
|
|
|
Executive |
|
Termination Date |
|
Base Salary Change |
|
Title |
Laurette J. Pitts |
|
December 31, 2014 updated to December 31, 2015 |
|
Base salary increased from $230,000 to $240,000 |
|
Title of Senior Vice President will be replaced with Executive Vice President. The remaining titles are unchanged. |
|
|
|
|
Nanette L. Horner |
|
December 31, 2014 updated to December 31, 2015 |
|
Base salary increased from $215,000 to $225,000 |
|
Title of Senior Vice President will be replaced with Executive Vice President. The remaining titles are unchanged. |
In addition to the changes detailed above, the Employment Agreement of each Executive was amended to supplement
the definition of Change in Control such that the following will also constitute a Change in Control:
The individuals
who, as of the date hereof, constitute the members of the Board (the Current Board Members) cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to
constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.
This
summary description is qualified in its entirety by reference to the actual Employment Agreement Amendments, which are filed as Exhibit 10.1 through 10.3 to this Form 8-K and are incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits. |
|
|
|
|
|
10.1 |
|
Amendment No. 1 to Employment Agreement with Joseph A. DAmato, dated May 29, 2014 |
|
|
10.2 |
|
Amendment No. 1 to Employment Agreement with Laurette J. Pitts, dated May 29, 2014 |
|
|
10.3 |
|
Amendment No. 1 to Employment Agreement with Nanette L. Horner, dated May 30, 2014 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: June 3, 2014
|
|
|
EMPIRE RESORTS, INC. |
|
|
By: |
|
/s/ Joseph A. DAmato |
Name: |
|
Joseph A. DAmato |
Title: |
|
Chief Executive Officer |
Exhibit Index
|
|
|
10.1 |
|
Amendment No. 1 to Employment Agreement with Joseph A. DAmato, dated May 29, 2014 |
|
|
10.2 |
|
Amendment No. 1 to Employment Agreement with Laurette J. Pitts, dated May 29, 2014 |
|
|
10.3 |
|
Amendment No. 1 to Employment Agreement with Nanette L. Horner, dated May 30, 2014 |
Exhibit 10.1
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment Agreement (this Amendment), is entered into as of May 29, 2014, by and between Empire
Resorts, Inc., a Delaware corporation (the Company), and Joseph A. DAmato (the Executive and, together with the Company, the Parties).
WITNESSETH:
WHEREAS, Empire and Executive entered into an Employment Agreement dated as of November 26, 2012 (hereinafter the Employment
Agreement); and
WHEREAS, the Parties desire to amend the Employment Agreement.
NOW, THEREFORE, the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:
1. |
Section 5(b) will be deleted in its entirety and replaced with the following: |
For
purposes of this Agreement, Change in Control shall be deemed to have occurred if:
i. a tender offer (or series of related
offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;
ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of
the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its
Subsidiaries, and their affiliates;
iii. the Company shall sell substantially all of its assets to another corporation that is not wholly
owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or
its Subsidiaries and their affiliates;
iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of
the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the
shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or
v. The individuals who, as of the date hereof, constitute the members of the Board (the Current Board Members) cease, by reason of
a financing, merger, combination, acquisition,
1
takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.
For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership
as determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the Exchange Act). In addition, for such purposes, Person shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportion as their ownership of stock of the Company.
The Parties hereby
agree that, except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment
Agreement as modified by this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first
written above.
|
|
|
|
|
EMPIRE RESORTS, INC. |
|
|
By: |
|
/s/ Laurette J. Pitts |
|
|
Name: |
|
Laurette J. Pitts |
|
|
Title: |
|
Senior Vice President, Chief Operating Officer and Chief Executive Officer |
|
EXECUTIVE |
|
/s/ Joseph A. DAmato |
Joseph A. DAmato |
2
Exhibit 10.2
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment Agreement (this Amendment), is entered into as of May 29, 2014, by and between
Empire Resorts, Inc., a Delaware corporation (the Company), and Laurette J. Pitts (the Executive and, together with the Company, the Parties).
WITNESSETH:
WHEREAS, Empire and Executive entered into an Employment Agreement dated as of August 17, 2012 (hereinafter the Employment
Agreement); and
WHEREAS, the Parties desire to amend the Employment Agreement.
NOW, THEREFORE, the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:
1. Section 1 shall be amended by deleting the date December 31, 2014 and inserting the date December 31, 2015 in place thereof.
2. Section 2(a) shall be amended by deleting the phrase Senior Vice President and inserting the phrase Executive Vice
President in place thereof.
3. Section 3 shall be amended by deleting the amount Two Hundred Thirty Thousand Dollars ($230,000)
and inserting the amount Two Hundred Forty Thousand Dollars ($240,000) in place thereof.
4. Section 5(b) will be deleted in its entirety
and replaced with the following:
For purposes of this Agreement, Change in Control shall be deemed to have occurred if:
i. a tender offer (or series of related offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting
securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time
immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;
ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of
the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its
Subsidiaries, and their affiliates;
iii. the Company shall sell substantially all of its assets to another corporation that is not wholly
owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or
its Subsidiaries and their affiliates;
1
iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of
the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the
shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or
v. The individuals who, as of the date hereof, constitute the members of the Board (the Current Board Members) cease, by reason of
a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.
For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership as
determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the Exchange Act). In addition, for such purposes, Person shall have the meaning given
in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportion as their ownership of stock of the Company.
The Parties hereby agree that
except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment Agreement as
modified by this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first written above.
|
|
|
|
|
EMPIRE RESORTS, INC. |
|
|
By: |
|
/s/ Joseph A. DAmato |
|
|
Name: |
|
Joseph A. DAmato |
|
|
Title: |
|
Chief Executive Officer |
|
EXECUTIVE |
|
/s/ Laurette J. Pitts |
Laurette J. Pitts |
2
Exhibit 10.3
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment Agreement (this Amendment), is entered into as of May 30, 2014, by and between Empire
Resorts, Inc., a Delaware corporation (the Company), and Nanette L. Horner (the Executive and, together with the Company, the Parties).
WITNESSETH:
WHEREAS, Empire and Executive entered into an Employment Agreement dated as of August 22, 2012 (hereinafter the Employment
Agreement); and
WHEREAS, the Parties desire to amend the Employment Agreement.
NOW, THEREFORE, the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:
1. Section 1 shall be amended by deleting the date December 31, 2014 and inserting the date December 31, 2015 in place thereof.
2. Section 2(a) shall be amended by deleting the phrase Senior Vice President and inserting the phrase Executive Vice
President in place thereof.
3. Section 3 shall be amended by deleting the amount Two Hundred Fifteen Thousand Dollars ($215,000)
and inserting the amount Two Hundred Twenty Five Thousand Dollars ($225,000) in place thereof.
4. Section 5(b) will be deleted in its
entirety and replaced with the following:
For purposes of this Agreement, Change in Control shall be deemed to have
occurred if:
i. a tender offer (or series of related offers) shall be made and consummated for the ownership of 50% or more of the
outstanding voting securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as
of the time immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;
ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of
the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its
Subsidiaries, and their affiliates;
iii. the Company shall sell substantially all of its assets to another corporation that is not wholly
owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or
its Subsidiaries and their affiliates;
1
iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of
the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the
shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or
v. The individuals who, as of the date hereof, constitute the members of the Board (the Current Board Members) cease, by reason of
a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.
For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership as
determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the Exchange Act). In addition, for such purposes, Person shall have the meaning given
in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportion as their ownership of stock of the Company.
The Parties hereby agree that,
except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment Agreement as
modified by this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first written above.
|
|
|
|
|
EMPIRE RESORTS, INC. |
|
|
By: |
|
/s/ Joseph A. DAmato |
|
|
Name: |
|
Joseph A. DAmato |
|
|
Title: |
|
Chief Executive Officer |
|
EXECUTIVE |
|
/s/ Nanette L. Horner |
Nanette L. Horner |
2
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Jul 2024 to Aug 2024
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Aug 2023 to Aug 2024