As filed with the Securities and Exchange Commission on December 30, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
EMPIRE RESORTS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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13-3714474 |
(State or other jurisdiction of
incorporation or organization) |
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c/o Monticello Casino and Raceway,
204 State Route 17B, P.O.
Box 5013, Monticello, NY 12701 |
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(I.R.S. Employer
Identification No.) |
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(Address of Principal Executive Offices) |
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EMPIRE RESORTS, INC. 2015 EQUITY INCENTIVE PLAN
(Full title of the plan)
Joseph A.
DAmato
Chief Executive Officer and Director
Empire Resorts, Inc.
c/o
Monticello Casino and Raceway
204 State Route 17B, P.O. Box 5013
Monticello, New York 12701
(Name and address of agent for service)
(845) 807-0001
(Telephone
number, including area code, of agent for service)
Copies to:
Douglas S. Ellenoff, Esq.
Tamar Donikyan, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
(212) 370-1300
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of large accelerated filer, accelerate filer and smaller reporting
company in Rule 12b-2 of the Exchange Act. (Check one):
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Large Accelerated Filer |
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Accelerated Filer |
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x |
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Non-Accelerated Filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of
Securities to be Registered |
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Proposed
Maximum Amount to
be Registered (1) |
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Proposed
Maximum Offering
Price Per Share (2) |
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Aggregate
Offering Price (2) |
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Amount of
Registration Fee |
Common stock, par value $.01 per share |
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2,585,708 (3) |
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$22.30005 |
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$57,661,399.85 |
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$5,807.00 |
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(1) |
Pursuant to Rule 416(a), this Registration Statement also covers additional securities that may be offered as a result of stock splits, stock dividends, or similar transactions relating to the shares covered by this
registration statement. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described
herein. |
(2) |
Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) and based upon the average of the high and low sales price of the registrants common stock on
December 24, 2015, as reported by the NASDAQ Capital Market. |
(3) |
All share numbers in this Registration Statement reflect the Companys one-for-five reverse stock split that took place on December 23, 2015 (the Reverse Stock Split). |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information.* |
Item 2. |
Registrant Information and Employee Plan Annual Information.* |
* |
Information required by Part I to be contained in the Section 10(a) Prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended. |
Reoffer Prospectus
EMPIRE RESORTS, INC.
15,000 Shares
Common
Stock
This Reoffer Prospectus relates to offers and sales by certain of our executive officers and directors (also called Selling Stockholders), who
may be deemed affiliates of the Company, of our common stock that is held, or may be acquired, upon the exercise of stock options and the vesting of restricted common stock pursuant to our Empire Resorts, Inc. 2015 Equity Incentive Plan,
which we refer to herein as the Plan. This prospectus covers 15,000 shares of our currently outstanding restricted shares of common stock that are owned by the Selling Stockholders. All share numbers in this Reoffer Prospectus reflect the
Companys one-for-five reverse stock split that took effect on December 23, 2015 (the Reverse Stock Split).
Our
common stock is quoted on the Nasdaq Global Market under the symbol NYNY. On December 24, 2015, the closing sales price for our common stock on the Nasdaq Global Market was $22.20 per share.
The shares included in this prospectus may be offered and resold directly by the Selling Stockholders in the open market at prevailing prices
or in individually negotiated transactions, through agents designated from time to time or through underwriters or dealers. We will not control or determine the price at which a Selling Stockholder decides to sell its shares. Brokers or dealers
effecting transactions in these shares should confirm that the shares are registered under applicable state law or that an exemption from registration is available.
Investing in our common stock involves a high degree of risk. See the section entitled Risk Factors
beginning on page 3 and in the documents incorporated by reference herein before you decide to buy our common stock.
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this reoffer prospectus is December 30, 2015.
TABLE OF CONTENTS
You should rely only on the information contained in or incorporated by reference into this prospectus or any
prospectus supplement. We have not authorized any person to give any information or to make any representations other than those contained or incorporated by reference in this prospectus, and, if given or made, you must not rely upon such
information or representations as having been authorized. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than our shares of common stock described in this prospectus or an offer to
sell or the solicitation to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should not assume that the information we have included in this prospectus is accurate as of any date other than the date of
this prospectus or that any information we have incorporated by reference is accurate as of any date other than the date of the document incorporated by reference regardless of the time of delivery of this prospectus or of any securities registered
hereunder.
NOTE ON FORWARD LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this prospectus constitute forward-looking statements as that term is
defined under the Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, (the
Exchange Act). The words believe, expect, anticipate, intend, estimate, plan, project and other expressions which are predictions of or indicate future
events and trends and which do not relate to historical matters identify forward-looking statements. Reliance should not be placed on forward-looking statements because they involve known and unknown risks, uncertainties and other factors, which may
cause our actual results, performance or achievements to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements.
Please see Risk Factors for additional risks which could adversely impact our business and financial performance. Moreover, new
risks emerge from time to time and it is not possible for our management to predict all risks, nor can we assess the impact of all risks on our business or the extent to which any risk, or combination of risks, may cause actual results to differ
from those contained in any forward-looking statements. All forward-looking statements included in this prospectus are based on information available to us on the date of this prospectus. Except to the extent required by applicable laws or rules, we
undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable to us or persons acting
on our behalf are expressly qualified in their entirety by the cautionary statements contained throughout this prospectus.
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PROSPECTUS SUMMARY
The following summary highlights selected information contained or incorporated by reference in this prospectus. This summary does not contain all of the
information you should consider before investing in the securities. Before making an investment decision, you should read the entire prospectus carefully, including the risk factors section as well as the financial statements and the notes to the
financial statements incorporated herein by reference. In this prospectus and any amendment or supplement hereto, unless otherwise indicated, the terms Empire Resorts, Inc., Empire, the Company, we,
us, and our refer and relate to Empire Resorts, Inc. and its consolidated subsidiaries.
Our
Company
Empire Resorts, Inc. (Empire, the Company, us, our or we) was
organized as a Delaware corporation on March 19, 1993, and since that time has served as a holding company for various subsidiaries engaged in the hospitality and gaming industries.
Through our wholly owned subsidiary, Monticello Raceway Management, Inc. (MRMI), we currently own and operate Monticello Casino
and Raceway, a 45,000 square foot video gaming machine (VGM) and harness horseracing facility located in Monticello, New York, 90 miles northwest of New York City. Monticello Casino and Raceway operates 1,110 VGMs, which includes 1,070
video lottery terminals (VLTs) and 40 electronic table game positions (ETGs). VGMs are similar to slot machines, but they are connected to a central system and report financial information to the central system. We also
generate racing revenues through pari-mutuel wagering on the running of live harness horse races, the import simulcasting of harness and thoroughbred horse races from racetracks across the country and internationally, and the export simulcasting of
our races to offsite pari-mutuel wagering facilities.
On December 21, 2015, Montreign Operating Company, LLC
(Montreign), our wholly owned subsidiary, was awarded a license (a Gaming Facility License) by the New York State Gaming Commission (the NYSGC) to operate a resort casino (Montreign Resort Casino) to
be located at the site of a four-season destination resort planned for the Town of Thompson in Sullivan County 90 miles from New York City (Adelaar or the Adelaar Project). The award of the Gaming Facility License follows the
Companys selection in December 2014 by the New York State Gaming Facility Location Board (the Siting Board) as the sole Catskill/Hudson Valley Region One casino applicant eligible to apply to the NYSGC for a Gaming Facility
License. The Adelaar Project is to be located on approximately 1,700 acres (the EPR Property) owned by two wholly-owned subsidiaries of EPR Properties (EPR). Montreign Resort Casino is part of the initial phase of the Adelaar
Project, which will also include an Indoor Waterpark Lodge, Rees Jones redesigned Monster Golf Course (the Golf Course) and an Entertainment Village, which will include retail, restaurant, shopping and entertainment (the
Entertainment Village). Over the past four years, the Company has expended substantial time and resources on designing Montreign Resort Casino and, in conjunction with EPR, working with local, state and federal agencies and officials to
obtain the necessary permits and approvals to begin construction.
Our principal executive offices are c/o Monticello Casino and Raceway,
204 State Route 17B, P.O. Box 5013, Monticello, New York 12701. Our telephone number is (845) 807-0001.
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The Offering
Outstanding Common Stock |
9,559,298 shares of common stock outstanding as of December 24, 2015. |
Common Stock Offered |
Up to 15,000 shares of common stock for sale by the Selling Stockholders for their own account. |
Selling Stockholders |
The Selling Stockholders are set forth in the Section entitled Selling Stockholders of this prospectus on page 3. |
Proceeds |
We will not receive any proceeds from the sale of our common stock by the Selling Stockholders. See Use of Proceeds. |
Risk Factors |
The securities offered hereby involve a high degree of risk. See Risk Factors. |
Nasdaq Global Market Symbol |
NYNY |
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RISK FACTORS
An investment in our common stock involves a high degree of risk. Before making an investment decision, you should carefully consider the
following risk factors, as well as those set forth in our most recent Annual Report on Form 10-K on file with the Securities and Exchange Commission, which are incorporated by reference in this
prospectus. If any of these risks actually occur, our business, financial condition and results of operations could be materially harmed. In addition, risks and uncertainties not presently known to us or that we currently deem immaterial may also
materially harm our business, financial condition and results of operations. If this were to happen, the value of our common stock could decline significantly and you could lose all or part of your investment. Please see Note on
Forward-Looking Statements and Incorporation by Reference.
Risks Related to this Offering
Sales of shares issued under the Plan may cause the market price of our shares to decline.
When these shares of restricted common stock, granted under the Plan, become vested, an aggregate of an additional 15,000 shares of common
stock held by the selling stockholder may be sold in the open market. The sale of a significant amount of these shares of common stock in the open market, or the perception that these sales may occur, could cause the market price of our common stock
to decline or become highly volatile.
USE OF PROCEEDS
We will not receive any proceeds from the resale of our common stock by the Selling Stockholders pursuant to this prospectus. We have agreed
to pay the expenses of registration of these shares.
SELLING STOCKHOLDERS
We are registering our shares of common stock in order to permit the Selling Stockholders to offer the shares for resale from time to time.
The table below lists the Selling Stockholders and other information regarding the beneficial ownership of our shares of common stock by each of the Selling Stockholders, including the number of shares of our common stock beneficially owned by each
Selling Stockholder as of December 24, 2015.
Each of the Selling Stockholders is currently an employee, officer, director or
consultant of ours or of our affiliates. The shares being registered for reoffer and resale were acquired by the Selling Stockholders named below pursuant to the Empire Resorts, Inc. 2015 Equity Incentive Plan (the Plan).
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Name of Selling Stockholder (1) |
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Position |
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Number of Shares Beneficially Owned |
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Number of Shares Offered |
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Number of Shares Beneficially Owned After Offering |
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Percentage of Shares Beneficially Owned After Offering |
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Edmund Marinucci |
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Director |
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6,622 |
(2)(3) |
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3,000 |
(2) |
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3,622 |
(3) |
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Nancy Palumbo |
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Director |
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12,334 |
(2)(4) |
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3,000 |
(2) |
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9,334 |
(4) |
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Emanuel R. Pearlman |
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Director |
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80,866 |
(2)(5) |
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3,000 |
(2) |
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77,866 |
(5) |
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Gregg Polle |
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Director |
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12,138 |
(2)(6) |
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3,000 |
(2) |
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9,138 |
(6) |
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James Simon |
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Director |
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17,378 |
(2)(7) |
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3,000 |
(2) |
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14,378 |
(7) |
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(1) |
Unless otherwise indicated, the address of each stockholder, director, and executive officer listed above is Empire Resorts, Inc., c/o Monticello Casino and Raceway, Route 17B, P.O. Box 5013, Monticello,
New York 12701. |
(2) |
Includes 3,000 restricted shares of common stock, granted under the Plan on November 3, 2015, all of which shall vest on January 6, 2017. |
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(3) |
Number of shares beneficially owned consists of 6,622 shares of common stock. Of the 6,662 shares beneficially owned, 3,622 shares were granted under the Second Amended and Restated 2005 Equity Incentive Plan (the
2005 Plan), of which 1,622 are vested. An additional 2,000 shares vest on January 4, 2016, but vest immediately in the event of a Change in Control (as defined in the award). The shares granted under the 2005 Plan are not offered
for resale in this reoffer prospectus. |
(4) |
Number of shares beneficially owned consists of 12,334 shares of common stock. Of the 12,334 shares beneficially owned, 9,334 shares were granted under the 2005 Plan, of which 7,334 are vested. An additional 2,000
shares vest on January 4, 2016, but vest immediately in the event of a Change in Control (as defined in the award). The shares granted under the 2005 Plan are not offered for resale in this reoffer prospectus. |
(5) |
Number of shares beneficially owned consists of 80,866 shares of common stock. Of the 80,866 shares beneficially owned, 77,866 shares were granted under the 2005 Plan, of which 25,866 are vested. An additional 2,000
shares vest on January 4, 2016, but vest immediately in the event of a Change in Control (as defined in the award). 25,000 shares vest on the date on which the NYSGC authorizes the opening of the Montreign Resort Casino to the public
(Casino Date) and 25,000 vest at the six month anniversary of the Casino Date; 50,000 shall vest immediately in the event (i) Mr. Pearlman is removed from the Board other than for cause; (ii) if he is not re-nominated by
Kien Huat Realty III Limited to stand for election to the Board or (iii) upon a Change in Control (as defined in the award). The shares granted under the 2005 Plan are not offered for resale in this reoffer prospectus. |
(6) |
Number of shares beneficially owned consists of 12,138 shares of common stock. Of the 12,138 shares beneficially owned, 9,138 shares were granted under the 2005 Plan, of which 7,138 are vested. An additional 2,000
shares vest on January 4, 2016, but vest immediately in the event of a Change in Control (as defined in the award). The shares granted under the 2005 Plan are not offered for resale in this reoffer prospectus. |
(7) |
Number of shares beneficially owned consists of 17,378 shares of common stock. Of the 17,378 shares beneficially owned, 11,026 were granted under the 2005 Plan, of which 9,026 are vested. An additional 2,000 shares vest
on January 4, 2016, but vest immediately in the event of a Change in Control (as defined in the award). The shares granted under the 2005 Plan are not offered for resale in this reoffer prospectus. |
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PLAN OF DISTRIBUTION
In this section of the prospectus, the term Selling Stockholder means and includes:
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the persons identified in the table above as the Selling Stockholders; |
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those persons whose identities are not known as of the date hereof but may in the future be eligible to receive options under the Plan; and |
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any of the donees, pledgees, distributees, transferees or other successors in interest of those persons referenced above who may: (a) receive any of the shares of our common stock offered hereby after the date of
this prospectus and (b) offer or sell those shares hereunder. |
The shares of our common stock offered by this
prospectus may be sold from time to time directly by the Selling Stockholders. Alternatively, the Selling Stockholders may from time to time offer such shares through underwriters, brokers, dealers, agents or other intermediaries. The Selling
Stockholders as of the date of this prospectus have advised us that there were no underwriting or distribution arrangements entered into with respect to the common stock offered hereby. The distribution of the common stock by the Selling
Stockholders may be effected: in one or more transactions that may take place on the Nasdaq Global Market (including one or more block transaction) through customary brokerage channels, either through brokers acting as agents for the Selling
Stockholders, or through market makers, dealers or underwriters acting as principals who may resell these shares on the Nasdaq Global Market; in privately-negotiated sales; by a combination of such methods; or by other means. These transactions may
be effected at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at other negotiated prices. Usual and customary or specifically negotiated brokerage fees or commissions may be paid by the Selling
Stockholders in connection with sales of our common stock.
The Selling Stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In such transactions, broker-dealers may engage in short sales of the shares of our common stock in the course of hedging the positions they assume with the Selling
Stockholders. The Selling Stockholders also may sell shares short and redeliver the shares to close out such short positions. The Selling Stockholders may enter into option or other transactions with broker-dealers which require the delivery to the
broker-dealer of shares of our common stock. The broker-dealer may then resell or otherwise transfer such shares of common stock pursuant to this prospectus.
The Selling Stockholders also may lend or pledge shares of our common stock to a broker-dealer. The broker-dealer may sell the shares of
common stock so lent, or upon a default the broker-dealer may sell the pledged shares of common stock pursuant to this prospectus. Any securities covered by this prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule 144
rather than pursuant to this prospectus.
The Selling Stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. There is no underwriter or coordinating broker acting in connection with the proposed sale of shares of common stock the Selling
Stockholders.
Although the shares of common stock covered by this prospectus are not currently being underwritten, the Selling
Stockholders or their underwriters, brokers, dealers or other agents or other intermediaries, if any, that may participate with the selling security holders in any offering or distribution of common stock may be deemed underwriters
within the meaning of the Act and any profits realized or commissions received by them may be deemed underwriting compensation thereunder.
Under applicable rules and regulations under the Exchange Act, any person engaged in a distribution of shares of the common stock offered
hereby may not simultaneously engage in market making activities with respect to the common stock for a period of up to five days preceding such distribution. The Selling Stockholders will be subject to the applicable provisions of the Exchange Act
and the rules and regulations promulgated thereunder, including without limitation Regulation M, which provisions may limit the timing of purchases and sales by the Selling Stockholders.
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In order to comply with certain state securities or blue sky laws and regulations, if applicable,
the common stock offered hereby will be sold in such jurisdictions only through registered or licensed brokers or dealers. In certain states, the common stock may not be sold unless they are registered or qualified for sale in such state, or unless
an exemption from registration or qualification is available and is obtained.
We will bear all costs, expenses and fees in connection
with the registration of the common stock offered hereby. However, the Selling Stockholders will bear any brokerage or underwriting commissions and similar selling expenses, if any, attributable to the sale of the shares of common stock offered
pursuant to this prospectus. We have agreed to indemnify the Selling Stockholders against certain liabilities, including liabilities under the Act, or to contribute to payments to which any of those security holders may be required to make in
respect thereof.
There can be no assurance that the Selling Stockholders will sell any or all of the securities offered by them hereby.
LEGAL MATTERS
The validity of the securities being offered herein has been passed upon for us by Ellenoff Grossman & Schole LLP, New York, New
York.
DESCRIPION OF SECURITIES TO BE REGISTERED
General
Our authorized capital stock
consists of 150,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, of which 95,000 shares have been designated Series A Junior Participating Preferred Stock, $.01 par value per share, 821,496 shares have been designated Series B
Preferred Stock, 137,889 shares have been designated Series C Preferred Stock, $.01 par value per share, 4,000 shares have been designated Series D Preferred Stock, $.01 par value per share, and 1,730,697 shares have been designated Series E
Preferred Stock.
Common Stock
As of December 24, 2015, there were 9,559,298 shares of common stock outstanding and holders of record of our common stock.
Voting. Each holder of common stock is entitled to one vote for each share on all matters to be voted upon by the holders of
common stock.
Dividends. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of common
stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by our Board of Directors out of legally available funds.
Liquidation. In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to share ratably in
the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preferences that may be granted to the holders of any then outstanding shares of
preferred stock.
Rights and Preferences. The common stock has no preemptive, conversion or other subscription rights and there are
no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of
preferred stock, which we may designate and issue in the future.
New York State Gaming Commission. Our common stock is
transferable only subject to the provisions of Section 303 of the Racing, Pari-Mutuel Wagering and Breeding Law, so long as we hold directly or indirectly, a racing license issued by the NYSGC (formerly the New York Racing and Wagering Board),
and may be subject to compliance with the requirements of other laws pertaining to licenses held directly or indirectly by us. The owners of common stock issued by the Company may be required by regulatory authorities to possess certain
qualifications and may be required to dispose of their common stock if the owner does not possess such qualifications.
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Our common stock is listed on the Nasdaq Global Market under the symbol NYNY.
The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company.
EXPERTS
The consolidated financial statements of Empire Resorts, Inc. appearing in Empire Resorts, Inc.s Annual Report (Form 10-K) as of
December 31, 2014 and 2013, and for each of the three years in the period ended December 31, 2014 including schedules appearing therein, and the effectiveness of Empire Resorts, Inc.s internal control over financial reporting as of
December 31, 2014, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Commission are incorporated herein by reference:
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(a) |
The registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on March 10, 2015; |
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(b) |
The registrants Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2015, June 30, 2015 and September 30, 2015, filed on May 6, 2015, August 5, 2015 and
November 9, 2015, respectively; and |
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(c) |
The registrants Current Reports on Form 8-K filed on June 1, 2015, July 7, 2015, July 9, 2015, September 10, 2015, September 22, 2015, November 3, 2015, December 21,
2015 and December 23, 2015. |
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
You may request a copy of these filings at no cost (other than exhibits unless such exhibits are specifically incorporated by reference) by
writing or telephoning us at the following address and telephone number:
EMPIRE RESORTS, INC.
c/o Monticello Casino and Raceway
204 State Route 17B, P.O. Box 5013
Monticello, New York 12701
(845) 807-0001
You should
rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than the date on the front page of those documents.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the Securities and Exchange Commission under the Securities Act of 1933, as amended, with respect
to the shares of our common stock offered by this prospectus. This prospectus is part of that registration statement and does not contain all the information included in the registration statement. For further information with respect to our common
stock and us, you should refer to the registration statement, its exhibits and the material incorporated by reference therein. Portions of the exhibits have been omitted as permitted by the rules and regulations of the Securities and Exchange
Commission. Statements made in this prospectus as to the contents of any contract, agreement or other document referred to are not necessarily complete. In each instance, we refer you to the copy of the contracts or other documents filed as an
exhibit to the registration statement, and these statements are hereby qualified in their entirety by reference to the contract or document. The registration statement may be inspected and copied at the public reference facilities maintained by the
Securities and Exchange Commission at Room 1024, Judiciary Plaza, 100 F Street, N.E., Washington, D.C. 20549 and the Regional Offices at the Commission located in the Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and
at 233 Broadway, New York, New York 10279. Copies of those filings can be obtained from the Commissions Public Reference Section, Judiciary Plaza, 100 F Fifth Street, N.E., Washington, D.C. 20549 at prescribed rates and may also
be obtained from the web site that the Securities and Exchange Commission maintains at http://www.sec.gov. You may also call the Commission at 1-800-SEC-0330 for more information. We file annual, quarterly and current reports and other information
with the Securities and Exchange Commission. You may read and copy any reports, statements or other information on file at the Commissions public reference room in Washington, D.C. You can request copies of those documents upon payment of a
duplicating fee, by writing to the Securities and Exchange Commission.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES LAW VIOLATIONS
Our certificate of incorporation provides that all our directors, officers, employees and agents shall be entitled to be indemnified by us to
the fullest extent permitted under the Delaware General Corporation Law, provided that they acted in good faith and that they reasoned their conduct or action was in, or not opposed to, the best interest of our company. Our Bylaws provide for
indemnification of our officers, directors and others who become a party to an action on our behalf by us to the fullest extent not prohibited under the Delaware General Corporation Law. Further, we maintain officer and director liability insurance.
However, insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions or otherwise, we have been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by
a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of
our counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
8
You should rely only on the information contained in this document. We have not authorized
anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate on the date of this document.
Additional risks and uncertainties not presently known or that are currently deemed immaterial may also impair our business operations. The
risks and uncertainties described in this document and other risks and uncertainties which we may face in the future will have a greater impact on those who purchase our common stock. These purchasers will purchase our common stock at the market
price or at a privately negotiated price and will run the risk of losing their entire investment.
EMPIRE RESORTS, INC.
15,000 shares
common
stock
PROSPECTUS
December 30, 2015
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Included in the prospectus which is part of this registration statement.
Item 4. Description of Securities.
Included in the prospectus which is part of this registration statement.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification
of Officers and Directors.
The registrants certificate of incorporation contains certain provisions permitted under the Delaware
General Corporation Law relating to the liability of its directors. These provisions eliminate a directors personal liability for monetary damages resulting from a breach of fiduciary duty, except in certain circumstances involving wrongful
acts, including:
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for any breach of the directors duty of loyalty to the registrant or its stockholders; |
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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any unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions as provided in Section 174 of the Delaware General Corporation Law; or |
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for any transaction from which the director derives an improper personal benefit. |
These
provisions do not limit or eliminate the registrants rights or those of any stockholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a directors fiduciary duty. These provisions will not
alter a directors liability under federal securities laws. The registrants amended and restated bylaws also contain provisions indemnifying the registrants directors and officers to the fullest extent permitted by the Delaware
General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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4.1 |
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Empire Resorts, Inc. 2015 Equity Incentive Plan (filed herewith) |
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5.1 |
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Opinion of Ellenoff Grossman & Schole LLP as to the legality of the securities being registered (filed herewith) |
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23.1 |
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Consent of Ernst & Young (filed herewith) |
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23.2 |
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Consent of Ellenoff Grossman & Schole LLP (included in Exhibit 5.1) |
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24.1 |
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Power of Attorney (included on signature page hereof) |
II-1
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) (§230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof, and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of New York, state of New York, on December 30,
2015.
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EMPIRE RESORTS, INC. |
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By: |
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/s/ Joseph A. DAmato |
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Name: Joseph A. DAmato |
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Title: Chief Executive Officer |
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nanette L. Horner as his or her true
and lawful attorney-in-fact with full power of substitution and resubstitution for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments to this
registration statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Commission, hereby ratifying and confirming all that said attorneys-in-fact or her substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated below.
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Signature |
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Title |
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Date |
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/s/ Joseph A. DAmato
Joseph A. DAmato |
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Chief Executive Officer and Director (Principal
Executive Officer) |
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December 30, 2015 |
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/s/ Laurette J. Pitts
Laurette J. Pitts |
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Executive Vice President, Chief Operating Officer and Chief Financial Officer (Principal Financial and Accounting Officer) |
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December 30, 2015 |
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/s/ Emanuel R. Pearlman
Emanuel R. Pearlman |
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Chairman of the Board |
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December 30, 2015 |
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/s/ Edmund Marinucci
Edmund Marinucci |
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Director |
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December 30, 2015 |
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/s/ James Simon
James Simon |
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Director |
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December 30, 2015 |
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/s/ Nancy A. Palumbo
Nancy A. Palumbo |
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Director |
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December 30, 2015 |
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/s/ Gregg Polle
Gregg Polle |
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Director |
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December 30, 2015 |
II-3
EXHIBITS
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Exhibit Number |
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Description of Exhibit |
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4.1 |
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Empire Resorts, Inc. 2015 Equity Incentive Plan |
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5.1 |
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Opinion of Ellenoff Grossman & Schole LLP as to the legality of the securities being registered |
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23.1 |
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Consent of Ernst & Young |
II-4
Exhibit 4.1
EMPIRE RESORTS, INC
2015 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the Empire Resorts, Inc. 2015 Equity Incentive Plan is to provide a means through which the Company and its
Affiliates may attract and retain key personnel and to provide a means whereby directors, officers, managers, employees, consultants and advisors of the Company and its Affiliates can acquire and maintain an equity interest in the Company, or be
paid incentive compensation, which may (but need not) be measured by reference to the value of Common Shares, thereby strengthening their commitment to the welfare of the Company and its Affiliates and aligning their interests with those of the
Companys stockholders.
2. Definitions. The following definitions shall be applicable throughout this Plan:
(a) Affiliate means (i) any person or entity that directly or indirectly controls, is controlled by or is under
common control with the Company and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest as determined by the Committee in its discretion. The term control (including,
with correlative meaning, the terms controlled by and under common control with), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) Award means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Unit, Stock Bonus Award or Performance Compensation Award granted under this Plan.
(c) Award Agreement means an agreement made and delivered in accordance with Section 15(a) of this Plan
evidencing the grant of an Award hereunder.
(d) Board means the Board of Directors of the Company.
(e) Business Day means any day other than a Saturday, a Sunday or a day on which banking institutions in New York
City are authorized or obligated by federal law or executive order to be closed.
(f) Cause means, in the case of
a particular Award, unless the applicable Award Agreement states otherwise, (i) the Company or an Affiliate having cause to terminate a Participants employment or service, as defined in any employment or consulting agreement
or similar document or policy between the Participant and the Company or an Affiliate in effect at the time of such termination or (ii) in the absence of any such employment or consulting agreement, document or policy (or the absence of any
definition of Cause contained therein), (A) a continuing material breach or material default (including, without limitation, any material dereliction of duty) by Participant of any agreement between the Participant and the Company,
except for any such breach or default which is caused by the physical disability of the Participant (as determined by a neutral physician), or a continuing failure by the Participant to follow the
direction of a duly authorized representative of the Company; (B) gross negligence, willful misfeasance or breach of fiduciary duty to the Company or Affiliate of the Company by the
Participant; (C) the commission by the Participant of an act of fraud, embezzlement or any felony or other crime of dishonesty in connection with the Participants duties to the Company or Affiliate of the Company; or (D) conviction
of the Participant of a felony or any other crime that would materially and adversely affect: (i) the business reputation of the Company or Affiliate of the Company or (ii) the performance of the Participants duties to the Company or
an Affiliate of the Company. Any determination of whether Cause exists shall be made by the Committee in its sole discretion.
(g)
Change in Control shall, in the case of a particular Award, unless the applicable Award Agreement states otherwise or contains a different definition of Change in Control, be deemed to occur upon:
(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 or entity shall be owned in the aggregate by (A) the shareholders of the Company (as
of the time immediately prior to the commencement of such offer), or (B) 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 or entity shall be owned in the aggregate by (A) the shareholders of the Company (as of the time immediately prior to such transaction); provided, that a merger or
consolidation of the Company with another company which is controlled by persons owning more than 50% of the outstanding voting securities of the Company shall constitute a Change in Control unless the Committee, in its discretion, determine
otherwise, or (B) 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 entity 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 (A) the shareholders of the Company (as of the time
immediately prior to such transaction), or (B) 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 or entity shall be owned in the aggregate by (A) the shareholders of the Company (as
of the time immediately prior to the first acquisition of such securities by such Person), or (B) any employee benefit plan of the Company or its Subsidiaries, and their Affiliates; or
2
(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 2(g), 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 Securities 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.
(h) Code means the Internal Revenue Code of 1986, as amended, and any successor thereto. References in this Plan to
any section of the Code shall be deemed to include any regulations or other interpretative guidance issued by any governmental authority under such section, and any amendments or successor provisions to such section, regulations or guidance.
(i) Committee means a committee of at least two people as the Board may appoint to administer this Plan or, if no
such committee has been appointed by the Board, the Board. Unless altered by an action of the Board, the Committee shall be the Compensation Committee of the Board.
(j) Common Shares means the common stock, par value $0.01 per share, of the Company (and any stock or other
securities into which such common shares may be converted or into which they may be exchanged).
(k) Company
means Empire Resorts, Inc., a Delaware corporation, together with its successors and assigns.
(l) Current Board
Members has the meaning given such term in the definition of Change in Control.
(m) Date of
Grant means the date on which the granting of an Award is authorized, or such other date as may be specified in such authorization.
(n) Disability means a permanent and total disability incurred by a Participant while in the employ or
service of the Company or an Affiliate. For this purpose, a permanent and total disability shall mean that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months. The determination of whether a Participant has incurred a permanent and total disability shall be made by a
physician designated by the Committee, whose determination shall be final and binding.
3
(o) Effective Date means the date as of which this Plan is adopted by
the Board, subject to Section 3 of this Plan.
(p) Eligible Director means a person who is (i) a
non-employee director within the meaning of Rule 16b-3 under the Exchange Act, and (ii) an outside director within the meaning of Section 162(m) of the Code.
(q) Eligible Person means any (i) individual employed by the Company or an Affiliate; provided, however,
that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto;
(ii) director of the Company or an Affiliate; or (iii) consultant or advisor to the Company or an Affiliate, provided that if the Securities Act applies such persons must be eligible to be offered securities registrable on Form S-8 under
the Securities Act.
(r) Exchange Act has the meaning given such term in the definition of Change in
Control, and any reference in this Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance issued by any governmental authority under such section
or rule, and any amendments or successor provisions to such section, rules, regulations or guidance.
(s) Exercise
Price has the meaning given such term in Section 7(b) of this Plan.
(t) Fair Market Value,
unless otherwise provided by the Committee in accordance with all applicable laws, rules regulations and standards, means, on a given date, (i) if the Common Shares are listed on a national securities exchange, the closing sales price on the
principal exchange of the Common Shares on such date or, in the absence of reported sales on such date, the closing sales price on the immediately preceding date on which sales were reported, or (ii) if the Common Shares are not listed on a
national securities exchange, the mean between the bid and offered prices as quoted by any nationally recognized interdealer quotation system for such date, provided that if the Common Shares are not quoted on an interdealer quotation system or it
is determined that the fair market value is not properly reflected by such quotations, Fair Market Value will be determined by such other method as the Committee determines in good faith to be reasonable and in compliance with Code
Section 409A.
(u) Immediate Family Members shall have the meaning set forth in Section 15(b) of this
Plan.
(v) Incentive Stock Option means an Option that is designated by the Committee as an incentive stock
option as described in Section 422 of the Code and otherwise meets the requirements set forth in this Plan.
(w)
Indemnifiable Person shall have the meaning set forth in Section 4(e) of this Plan.
4
(x) Negative Discretion shall mean the discretion authorized by this
Plan to be applied by the Committee to eliminate or reduce the size of a Performance Compensation Award consistent with Section 162(m) of the Code.
(y) Nonqualified Stock Option means an Option that is not designated by the Committee as an Incentive Stock Option.
(z) Option means an Award granted under Section 7 of this Plan.
(aa) Option Period has the meaning given such term in Section 7(c) of this Plan.
(bb) Participant means an Eligible Person who has been selected by the Committee to participate in this Plan and to
receive an Award pursuant to Section 6 of this Plan.
(cc) Performance Compensation Award shall mean any
Award designated by the Committee as a Performance Compensation Award pursuant to Section 11 of this Plan.
(dd)
Performance Criteria shall mean the criterion or criteria that the Committee shall select for purposes of establishing the Performance Goal(s) for a Performance Period with respect to any Performance Compensation Award
under this Plan.
(ee) Performance Formula shall mean, for a Performance Period, the one or more objective
formulae applied against the relevant Performance Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance Compensation Award has been
earned for the Performance Period.
(ff) Performance Goals shall mean, for a Performance Period, the one or more
goals established by the Committee for the Performance Period based upon the Performance Criteria.
(gg) Performance
Period shall mean the one or more periods of time, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participants right to, and the payment
of, a Performance Compensation Award.
(hh) Permitted Transferee shall have the meaning set forth in
Section 15(b) of this Plan.
(ii) Person has the meaning given such term in the definition of Change
in Control.
(jj) Plan means this Empire Resorts, Inc. 2015 Equity Incentive Plan, as amended from time to
time.
(kk) Retirement means the fulfillment of each of the following conditions: (i) the Participant is in
good standing with the Company and/or an Affiliate of the Company as
5
determined by the Committee; (ii) the voluntary termination by a Participant of such Participants employment or service to the Company and/or an Affiliate and (iii) that at the
time of such voluntary termination, the sum of: (A) the Participants age (calculated to the nearest month, with any resulting fraction of a year being calculated as the number of months in the year divided by 12) and (B) the
Participants years of employment or service with the Company (calculated to the nearest month, with any resulting fraction of a year being calculated as the number of months in the year divided by 12) equals at least 62 (provided that, in any
case, the foregoing shall only be applicable if, at the time of such Retirement, the Participant shall be at least 55 years of age and shall have been employed by or served with the Company for no less than five years).
(ll) Restricted Period means the period of time determined by the Committee during which an Award is subject to
restrictions or, as applicable, the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(mm) Restricted Stock Unit means an unfunded and unsecured promise to deliver Common Shares, cash, other securities
or other property, subject to certain restrictions (including, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of this
Plan.
(nn) Restricted Stock means Common Shares, subject to certain specified restrictions (including, without
limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of this Plan.
(oo) SAR Period has the meaning given such term in Section 8(c) of this Plan.
(pp) Securities Act means the Securities Act of 1933, as amended, and any successor thereto. Reference in this Plan
to any section of the Securities Act shall be deemed to include any rules, regulations or other official interpretative guidance issued by any governmental authority under such section, and any amendments or successor provisions to such section,
rules, regulations or guidance.
(qq) Stock Appreciation Right or SAR means an Award
granted under Section 8 of this Plan which meets all of the requirements of Section 1.409A-1(b)(5)(i)(B) of the Treasury Regulations.
(rr) Stock Bonus Award means an Award granted under Section 10 of this Plan.
(ss) Strike Price means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in
the case of a SAR granted in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent of an Option, the Fair Market Value of Common Shares on the Date of Grant.
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(tt) Subsidiary means, with respect to any specified Person:
(i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of voting securities
(without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) is at the time owned or controlled, directly or indirectly, by that Person
or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any partnership or limited liability company
(or any comparable foreign entity) (a) the sole general partner or managing member (or functional equivalent thereof) or the managing general partner of which is such Person or Subsidiary of such Person or (b) the only general partners or
managing members (or functional equivalents thereof) of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
(uu) Substitute Award has the meaning given such term in Section 5(e).
(vv) Treasury Regulations means any regulations, whether proposed, temporary or final, promulgated by the U.S.
Department of Treasury under the Code, and any successor provisions.
3. Effective Date; Duration. The Plan shall be effective on
November 2, 2015, the date on which it is approved by the stockholders of the Company, which date shall be within twelve (12) months before or after the date of the Plans adoption by the Board. The expiration date of this Plan, on
and after which date no Awards may be granted hereunder, shall be November 2, 2025, the tenth anniversary of the date on which the Plan was approved by the stockholders of the Company; provided, however, that such expiration shall not
affect Awards then outstanding, and the terms and conditions of this Plan shall continue to apply to such Awards.
4.
Administration.
(a) The Committee shall administer this Plan. To the extent required to comply with the provisions of Rule 16b-3
promulgated under the Exchange Act (if the Board is not acting as the Committee under this Plan) or necessary to obtain the exception for performance-based compensation under Section 162(m) of the Code, as applicable, it is intended that each
member of the Committee shall, at the time he takes any action with respect to an Award under this Plan, be an Eligible Director. However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award
granted by the Committee that is otherwise validly granted under this Plan. The acts of a majority of the members present at any meeting at which a quorum is present or acts approved in writing by a majority of the Committee shall be deemed the acts
of the Committee. Whether a quorum is present shall be determined based on the Committees charter as approved by the Board.
(b)
Subject to the provisions of this Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by this Plan and its charter, to:
(i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the
7
number of Common Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions
of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Common Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended, and the method
or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery of cash, Common Shares, other securities, other Awards or other property
and other amounts payable with respect to an Award shall be made; (vii) interpret, administer, reconcile any inconsistency in, settle any controversy regarding, correct any defect in and/or complete any omission in this Plan and any instrument
or agreement relating to, or Award granted under, this Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of this Plan;
(ix) accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards; (x) to reprice existing Awards or to grant Awards in connection with or in consideration of the cancellation of an outstanding Award with a
higher price; and (xi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of this Plan.
(c) The Committee may, by resolution, expressly delegate to a special committee, consisting of one or more directors who may but need not be
officers of the Company, the authority, within specified parameters as to the number and types of Awards, to (i) designate officers and/or employees of the Company or any of its Affiliates to be recipients of Awards under this Plan, and
(ii) to determine the number of such Awards to be received by any such Participants; provided, however, that such delegation of duties and responsibilities may not be made with respect to grants of Awards to persons (i) subject to
Section 16 of the Exchange Act or (ii) who are, or who are reasonably expected to be, covered employees for purposes of Section 162(m) of the Code. The acts of such delegates shall be treated as acts of the Committee, and
such delegates shall report regularly to the Board and the Committee regarding the delegated duties and responsibilities and any Awards granted.
(d) Unless otherwise expressly provided in this Plan, all designations, determinations, interpretations, and other decisions under or with
respect to this Plan or any Award or any documents evidencing Awards granted pursuant to this Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities,
including, without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No member of the Board, the Committee, delegate of the Committee or any employee, advisor or agent of the Company or the Board or the
Committee (each such person, an Indemnifiable Person) shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect to this Plan or any Award hereunder. Each Indemnifiable
Person shall be indemnified and held harmless by the Company against and from (and the Company shall pay or reimburse on demand for) any loss, cost, liability, or expense (including court costs and attorneys fees) that may be imposed upon or
incurred by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved by reason of any action taken or
omitted to be taken under this Plan or any Award
8
Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Companys approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction
of any judgment in any such action, suit or proceeding against such Indemnifiable Person, provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives
notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Companys choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that
a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions of such Indemnifiable Person giving rise to the indemnification claim resulted
from such Indemnifiable Persons bad faith, fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the Companys Certificate of Incorporation or Bylaws. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to which any such Indemnifiable Person may be entitled under the Companys Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any other
power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Notwithstanding anything to the
contrary contained in this Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer this Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the
Committee under this Plan.
5. Grant of Awards; Shares Subject to this Plan; Limitations.
(a) The Committee may, from time to time, grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Bonus
Awards and/or Performance Compensation Awards to one or more Eligible Persons.
(b) Subject to Section 12 of this Plan, the Committee
is authorized to deliver under this Plan an aggregate of 4,762,490 Common Shares; provided, however, that on the 90th day after the Company is awarded a gaming facility license by the New
York State Gaming Commission with respect to the Montreign Resort Casino (the Trigger Date), the maximum number of Common Shares that may be delivered under the Plan shall automatically increase by the lesser of: (i) 8,166,046
Common Shares; (ii) such number of Common Shares as will increase the aggregate number of Common Shares that may be delivered under this Plan to be equal to 10% of the issued and outstanding Common Shares of the Company on the Trigger Date; and
(iii) such number of Common Shares as the Committee otherwise determines.
(c) Common Shares underlying Awards under this Plan that
are forfeited, cancelled, expire unexercised, or are settled in cash shall be available again for Awards under this Plan at the same ratio at which they were previously granted. Notwithstanding the foregoing, the following Common Shares shall not be
available again for Awards under the Plan: (i) shares tendered or held back upon the exercise of an Option or settlement of an Award to cover the Exercise Price of an Award; (ii) shares that are used or withheld to satisfy tax withholding
obligations of the Participant; and (iii) shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the SAR upon exercise thereof.
9
(d) Common Shares delivered by the Company in settlement of Awards may be authorized and unissued
shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase, or any combination of the foregoing.
(e) Subject to compliance with Section 1.409A-3(f) of the Treasury Regulations, Awards may, in the sole discretion of the Committee, be
granted under this Plan in assumption of, or in substitution for, outstanding awards previously granted by an entity acquired by the Company or with which the Company combines (Substitute Awards). The number of Common
Shares underlying any Substitute Awards shall be counted against the aggregate number of Common Shares available for Awards under this Plan.
(f) Notwithstanding any provision in the Plan to the contrary (but subject to adjustment as provided in Section 12), the Committee shall
not grant to any one Eligible Person in any one calendar year Awards (i) for more than 50% of the Available Shares in the aggregate or (ii) payable in cash in an amount exceeding $10,000,000 in the aggregate.
6. Eligibility. Participation shall be limited to Eligible Persons who have entered into an Award Agreement or who have received written
notification from the Committee, or from a person designated by the Committee, that they have been selected to participate in this Plan.
7. Options.
(a)
Generally. Each Option granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with
the Company)). Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement. All Options granted under
this Plan shall be Nonqualified Stock Options unless the applicable Award Agreement expressly states that the Option is intended to be an Incentive Stock Option. Notwithstanding any designation of an Option, to the extent that the aggregate Fair
Market Value of Common Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company or any Subsidiary) exceeds $100,000,
such excess Options shall be treated as Nonqualified Stock Options. Incentive Stock Options shall be granted only to Eligible Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible
Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless this Plan has been approved by the stockholders of the Company in a manner intended to comply with the
stockholder approval requirements of Section 422(b)(1) of the Code, provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option
shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by
Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof
shall be regarded as a Nonqualified Stock Option appropriately granted under this Plan.
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(b) Exercise Price. The exercise price (Exercise Price)
per Common Share for each Option shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant; provided, however, that in the case of an Incentive Stock Option granted to an employee who, at the time
of the grant of such Option, owns shares representing more than 10% of the voting power of all classes of shares of the Company or any Affiliate, the Exercise Price per share shall not be less than 110% of the Fair Market Value per share on the Date
of Grant; and, provided further, that notwithstanding any provision herein to the contrary, the Exercise Price shall not be less than the par value per Common Share.
(c) Vesting and Expiration. Options shall vest and become exercisable in such manner and on such date or dates determined by the
Committee and as set forth in the applicable Award Agreement, and shall expire after such period, not to exceed ten (10) years from the Date of Grant, as may be determined by the Committee (the Option Period);
provided, however, that the Option Period shall not exceed five (5) years from the Date of Grant in the case of an Incentive Stock Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the
voting power of all classes of shares of the Company or any Affiliate; and, provided, further, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any
Option, which acceleration shall not affect the terms and conditions of such Option other than with respect to exercisability. Unless otherwise provided by the Committee in an Award Agreement:
(i) an Option shall vest and become exercisable with respect to 100% of the Common Shares subject to such Option on each anniversary of the
Date of Grant;
(ii) the unvested portion of an Option shall expire upon termination of employment or service of the Participant granted
the Option, and the vested portion of such Option shall remain exercisable for:
(A) one year following termination of employment or
service by reason of such Participants death or Disability (with the determination of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the Option Period;
(B) for directors, officers and employees of the Company only, for ninety (90) days following termination of employment or service by
reason of such Participants Retirement;
(C) 90 calendar days following termination of employment or service for any reason other
than such Participants death, Disability or Retirement, and other than such Participants termination of employment or service for Cause, but not later than the expiration of the Option Period; and
(iii) both the unvested and the vested portion of an Option shall immediately expire upon the termination of the Participants employment
or service by the Company for Cause.
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Notwithstanding the foregoing provisions of Section 7(c) and consistent with the requirements of applicable
law, the Committee, in its sole discretion, may extend the post-termination of employment period during which a Participant may exercise vested Options.
(d) Method of Exercise and Form of Payment. No Common Shares shall be delivered pursuant to the exercise of an Option until
payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any federal, state, local and/or foreign income and employment taxes required to be withheld. Options that have
become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award Agreement accompanied by payment of the Exercise Price. The Exercise Price shall be payable
(i) in cash, check (subject to collection), cash equivalent and/or vested Common Shares valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of
ownership of a sufficient number of Common Shares in lieu of actual delivery of such shares to the Company); provided, however, that such Common Shares are not subject to any pledge or other security interest and; (ii) by such other
method as the Committee may permit in accordance with applicable law, in its sole discretion, including without limitation: (A) in other property having a fair market value (as determined by the Committee in its discretion) on the date of
exercise equal to the Exercise Price or (B) if there is a public market for the Common Shares at such time, by means of a broker-assisted cashless exercise pursuant to which the Company is delivered a copy of irrevocable
instructions to a stockbroker to sell the Common Shares otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a net exercise method whereby the
Company withholds from the delivery of the Common Shares for which the Option was exercised that number of Common Shares having a Fair Market Value equal to the aggregate Exercise Price for the Common Shares for which the Option was exercised. Any
fractional Common Shares shall be settled in cash.
(e) Notification upon Disqualifying Disposition of an Incentive Stock
Option. Each Participant awarded an Incentive Stock Option under this Plan shall notify the Company in writing immediately after the date he makes a disqualifying disposition of any Common Shares acquired pursuant to the exercise of such
Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common Shares before the later of (A) two years after the Date of Grant of the Incentive Stock Option or (B) one year
after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession of any Common Shares acquired pursuant to the exercise of an
Incentive Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence.
(f)
Compliance with Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a manner that the Committee determines would violate the Sarbanes-Oxley Act of 2002, if applicable, or any
other applicable law or the applicable rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are
listed or traded.
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8. Stock Appreciation Rights.
(a) Generally. Each SAR granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium
(including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each SAR so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not
inconsistent with this Plan as may be reflected in the applicable Award Agreement. Any Option granted under this Plan may include tandem SARs (i.e., SARs granted in conjunction with an Award of Options under this Plan). The Committee also may award
SARs to Eligible Persons independent of any Option.
(b) Exercise Price. The Exercise Price per Common Share for each Option
granted in connection with a SAR shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant.
(c) Vesting and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire according to the
same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable and shall expire in such manner and on such date or dates determined by the Committee and shall
expire after such period, not to exceed ten years, as may be determined by the Committee (the SAR Period); provided, however, that notwithstanding any vesting dates set by the Committee, the Committee may, in its
sole discretion, accelerate the exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to exercisability. Unless otherwise provided by the Committee in an Award Agreement:
(i) a SAR shall vest and become exercisable with respect to 100% of the Common Shares subject to such SAR on the third anniversary of the Date
of Grant;
(ii) the unvested portion of a SAR shall expire upon termination of employment or service of the Participant granted the SAR,
and the vested portion of such SAR shall remain exercisable for:
(A) one year following termination of employment or service by reason of
such Participants death or Disability (with the determination of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the SAR Period;
(B) for directors, officers and employees of the Company only, for the remainder of the SAR Period following termination of employment or
service by reason of such Participants Retirement;
(C) 90 calendar days following termination of employment or service for any
reason other than such Participants death, Disability or Retirement, and other than such Participants termination of employment or service for Cause, but not later than the expiration of the SAR Period; and
(iii) both the unvested and the vested portion of a SAR shall expire immediately upon the termination of the Participants employment or
service by the Company for Cause.
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(d) Method of Exercise. SARs that have become exercisable may be exercised by
delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding the foregoing, if on the last
day of the Option Period (or in the case of a SAR independent of an Option, the SAR Period), the Fair Market Value exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither the SAR
nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have been exercised by the Participant on such last day and the Company shall make the appropriate payment therefor.
(e) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of Common Shares
subject to the SAR that are being exercised multiplied by the excess, if any, of the Fair Market Value of one Common Share on the exercise date over the Strike Price, less an amount equal to any federal, state, local and non-U.S. income and
employment taxes required to be withheld. The Company shall pay such amount in cash, in Common Shares valued at Fair Market Value, or any combination thereof, as determined by the Committee. Any fractional Common Share shall be settled in cash.
9. Restricted Stock and Restricted Stock Units.
(a) Generally. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement (whether in
paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each such grant shall be subject to the conditions set forth in this Section 9, and to such
other conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement. Restricted Stock and Restricted Stock Units shall be subject to such restrictions on transferability and other restrictions as the Committee may
impose (including, for example, limitations on the right to vote Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions may lapse separately or in combination at such times, under such circumstances, in such
installments, upon the satisfaction of Performance Goals or otherwise, as the Committee determines at the time of the grant of an Award or thereafter. Except as otherwise provided in an Award Agreement, a Participant shall have none of the rights of
a stockholder with respect to Restricted Stock Units until such time as Common Shares are paid in settlement of such Awards.
(b)
Restricted Accounts; Escrow or Similar Arrangement. Unless otherwise determined by the Committee, upon the grant of Restricted Stock, a book entry in a restricted account shall be established in the Participants name at the
Companys transfer agent and, if the Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than held in such restricted account pending the release of the applicable restrictions, the Committee may
require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Stock
covered by such agreement. If a Participant shall fail to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and blank share power within the amount of time specified by the Committee, the Award
shall be null and void ab initio. Subject to the restrictions set forth in this Section 9 and the applicable Award Agreement, the Participant generally shall have the rights
14
and privileges of a stockholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock and the right to receive dividends, if applicable. To the extent
shares of Restricted Stock are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned to the Company, and all rights of the Participant to such shares and as a stockholder with respect thereto shall
terminate without further obligation on the part of the Company.
(c) Vesting; Acceleration of Lapse of Restrictions. Unless
otherwise provided by the Committee in an Award Agreement: (i) the Restricted Period shall lapse with respect to 100% of the Restricted Stock and Restricted Stock Units on the first anniversary of the Date of Grant; and (ii) the unvested
portion of Restricted Stock and Restricted Stock Units shall terminate and be forfeited upon the termination of employment or service of the Participant granted the applicable Award.
(d) Delivery of Restricted Stock and Settlement of Restricted Stock Units. (i) Upon the expiration of the Restricted Period
with respect to any shares of Restricted Stock, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow
arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his beneficiary, without charge, the share certificate evidencing the shares of Restricted Stock that have not then been forfeited and with respect to which
the Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Participant
in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends, upon the release of restrictions on such shares of Restricted Stock and, if such shares of Restricted
Stock are forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by the Committee in the applicable Award Agreement).
(ii) Unless otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period with respect to any
outstanding Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Share for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole
discretion and subject to the requirements of Section 409A of the Code, elect to (i) pay cash or part cash and part Common Share in lieu of delivering only Common Shares in respect of such Restricted Stock Units or (ii) defer the
delivery of Common Shares (or cash or part Common Shares and part cash, as the case may be) beyond the expiration of the Restricted Period if such delivery would result in a violation of applicable law until such time as is no longer the case. If a
cash payment is made in lieu of delivering Common Shares, the amount of such payment shall be equal to the Fair Market Value of the Common Shares as of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units, less
an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld.
10. Stock Bonus
Awards. The Committee may issue unrestricted Common Shares, or other Awards denominated in Common Shares, under this Plan to Eligible Persons, either alone or in tandem with other awards, in such amounts as the Committee shall from time to time
in its
15
sole discretion determine. Each Stock Bonus Award granted under this Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web
site maintained by the Company or a third party under contract with the Company)). Each Stock Bonus Award so granted shall be subject to such conditions not inconsistent with this Plan as may be reflected in the applicable Award Agreement.
11. Performance Compensation Awards.
(a) Generally. The provisions of the Plan are intended to enable Options and Stock Appreciation Rights granted hereunder to
certain Eligible Persons to qualify for an exemption under Section 162(m) of the Code. The Committee shall have the authority, at the time of grant of any Award described in Sections 7 through 10 of this Plan, to designate such Award as a
Performance Compensation Award intended to qualify as performance-based compensation under Section 162(m) of the Code. The Committee shall have the authority to make an award of a cash bonus to any Participant and designate such
Award as a Performance Compensation Award intended to qualify as performance-based compensation under Section 162(m) of the Code.
(b) Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the
Committee shall have sole discretion to select the length of such Performance Period, the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or
level(s) of the Performance Goals(s) that is (are) to apply and the Performance Formula. Within the first 90 calendar days of a Performance Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code, if
applicable), the Committee shall, with regard to the Performance Compensation Awards to be issued for such Performance Period, exercise its discretion with respect to each of the matters enumerated in the immediately preceding sentence and record
the same in writing.
(c) Performance Criteria. The Performance Criteria that will be used to establish the Performance
Goal(s) shall be based on the attainment of specific levels of performance of the Company and/or one or more Affiliates, divisions or operational units, or any combination of the foregoing, as determined by the Committee, which criteria may be based
on one or more of the following business criteria: (i) revenue; (ii) sales; (iii) profit (net profit, gross profit, operating profit, economic profit, profit margins or other corporate profit measures); (iv) earnings (EBIT,
EBITDA, earnings per share, or other corporate earnings measures); (v) net income (before or after taxes, operating income or other income measures); (vi) cash (cash flow, cash generation or other cash measures); (vii) stock price or
performance; (viii) total stockholder return (stock price appreciation plus reinvested dividends divided by beginning share price); (ix) economic value added; (x) return measures (including, but not limited to, return on assets,
capital, equity, investments or sales, and cash flow return on assets, capital, equity, or sales); (xi) market share; (xii) improvements in capital structure; (xiii) expenses (expense management, expense ratio, expense efficiency
ratios or other expense measures); (xiv) business expansion or consolidation (acquisitions and divestitures); (xv) internal rate of return or increase in net present value; (xvi) working capital targets relating to inventory and/or
accounts receivable; (xvii) inventory management; (xviii) service or product delivery or quality; (xix) customer satisfaction; (xx) employee retention; (xxi) safety standards; (xxii) productivity measures;
(xxiii) cost
16
reduction measures; and/or (xxiv) strategic plan development and implementation. Any one or more of the Performance Criteria adopted by the Committee may be used on an absolute or relative
basis to measure the performance of the Company and/or one or more Affiliates as a whole or any business unit(s) of the Company and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above
Performance Criteria may be compared to the performance of a selected group of comparison companies, or a published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices. The
Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this paragraph. To the extent required under Section 162(m) of the
Code, the Committee shall, within the first 90 calendar days of a Performance Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code), define in an objective fashion the manner of calculating the
Performance Criteria it selects to use for such Performance Period and thereafter promptly communicate such Performance Criteria to the Participant.
(d) Modification of Performance Goal(s). In the event that applicable tax and/or securities laws change to permit Committee
discretion to alter the governing Performance Criteria without obtaining stockholder approval of such alterations, the Committee shall have sole discretion to make such alterations without obtaining stockholder approval. The Committee is authorized
at any time during the first 90 calendar days of a Performance Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code, if applicable), or at any time thereafter to the extent the exercise of such
authority at such time would not cause the Performance Compensation Awards granted to any Participant for such Performance Period to fail to qualify as performance-based compensation under Section 162(m) of the Code, in its sole
discretion, to adjust or modify the calculation of a Performance Goal for such Performance Period, based on and in order to appropriately reflect the following events: (i) asset write-downs; (ii) litigation or claim judgments or
settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (iv) any reorganization and restructuring programs; (v) extraordinary nonrecurring items as
described in Accounting Principles Board Opinion No. 30 (or any successor pronouncement thereto) and/or in managements discussion and analysis of financial condition and results of operations appearing in the Companys annual report
to stockholders for the applicable year; (vi) acquisitions or divestitures; (vii) any other specific unusual or nonrecurring events, or objectively determinable category thereof; (viii) foreign exchange gains and losses; and
(ix) a change in the Companys fiscal year.
(e) Payment of Performance Compensation Awards.
(i) Condition to Receipt of Payment. Unless otherwise provided in the applicable Award Agreement, a Participant must be employed
by, or in service to, the Company on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance Period.
(ii) Limitation. A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the
extent that: (A) the Performance Goals for such period are achieved; and (B) all or some of the portion of such Participants Performance Compensation Award has been earned for the Performance Period based on the application of the
Performance Formula to such achieved Performance Goals.
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(iii) Certification. Following the completion of a Performance Period, the
Committee shall review and certify in writing whether, and to what extent, the Performance Goals for the Performance Period have been achieved and, if so, calculate and certify in writing that amount of the Performance Compensation Awards earned for
the period based upon the Performance Formula. The Committee shall then determine the amount of each Participants Performance Compensation Award actually payable for the Performance Period and, in so doing, may apply Negative Discretion.
(iv) Use of Negative Discretion. In determining the actual amount of an individual Participants Performance Compensation
Award for a Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation Award earned under the Performance Formula in the Performance Period through the use of Negative Discretion if, in its sole judgment,
such reduction or elimination is appropriate. The Committee shall not have the discretion, except as is otherwise provided in this Plan, to (A) grant or provide payment in respect of Performance Compensation Awards for a Performance Period if
the Performance Goals for such Performance Period have not been attained; or (B) increase a Performance Compensation Award above the applicable limitations set forth in Section 5 of this Plan.
(f) Timing of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to Participants as
soon as administratively practicable following completion of the certifications required by this Section 11, but in no event later than two-and-one-half months following the end of the fiscal year during which the Performance Period is
completed in order to comply with the short-term deferral rules under Section 1.409A-1(b)(4) of the Treasury Regulations. Notwithstanding the foregoing, payment of a Performance Compensation Award may be delayed, as permitted by
Section 1.409A-2(b)(7)(i) of the Treasury Regulations, to the extent that the Company reasonably anticipates that if such payment were made as scheduled, the Companys tax deduction with respect to such payment would not be permitted due
to the application of Section 162(m) of the Code.
12. Changes in Capital Structure and Similar Events. In the event of
(a) any dividend or other distribution (whether in the form of cash, Common Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, split-up,
split-off, combination, repurchase or exchange of Common Shares or other securities of the Company, issuance of warrants or other rights to acquire Common Shares or other securities of the Company, or other similar corporate transaction or event
(including, without limitation, a Change in Control) that affects the Common Shares, or (b) unusual or nonrecurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of
the Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation system, accounting principles or law, such that in either case an
adjustment is determined by the Committee in its sole discretion to be necessary or appropriate in order to prevent dilution or enlargement of rights, then the Committee shall make any such adjustments that are equitable, including without
limitation any or all of the following:
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(i) adjusting any or all of (A) the number of Common Shares or other securities of the
Company (or number and kind of other securities or other property) that may be delivered in respect of Awards or with respect to which Awards may be granted under this Plan (including, without limitation, adjusting any or all of the limitations
under Section 5 of this Plan) and (B) the terms of any outstanding Award, including, without limitation, (1) the number of Common Shares or other securities of the Company (or number and kind of other securities or other property)
subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award or (3) any applicable performance measures (including, without limitation, Performance Criteria and
Performance Goals);
(ii) subject to the requirements of Section 409A of the Code, providing for a substitution or assumption of
Awards, accelerating the exercisability of, lapse of restrictions on, or termination of, Awards or providing for a period of time for exercise prior to the occurrence of such event; and
(iii) subject to the requirements of Section 409A of the Code, canceling any one or more outstanding Awards and causing to be paid to the
holders thereof, in cash, Common Shares, other securities or other property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the price per Common Share received or
to be received by other stockholders of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified
by the Committee) of the Common Shares subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR having a per share Exercise Price
or Strike Price equal to, or in excess of, the Fair Market Value of a Common Share subject thereto may be canceled and terminated without any payment or consideration therefor); provided, however, that in the case of any equity
restructuring (within the meaning of the Financial Accounting Standards Board Statement of Financial Accounting Standards No. 123 (revised 2004) or ASC Topic 718, or any successor thereto), the Committee shall make an equitable or
proportionate adjustment to outstanding Awards to reflect such equity restructuring. Any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not
constituting a modification within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 12 shall be made in a manner that does not adversely affect the exemption provided pursuant to Rule 16b-3
under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.
13. Effect of Change in Control. Except to the extent otherwise provided in an Award Agreement, in the event of a Change in Control,
notwithstanding any provision of this Plan to the contrary, with respect to all or any portion of a particular outstanding Award or Awards:
(a) all of the then outstanding Options and SARs shall immediately vest and become immediately exercisable as of a time prior to the Change in
Control;
(b) the Restricted Period shall expire as of a time prior to the Change in Control (including without limitation a waiver of any
applicable Performance Goals);
19
(c) Performance Periods in effect on the date the Change in Control occurs shall end on such
date, and the Committee shall (i) determine the extent to which Performance Goals with respect to each such Performance Period have been met based upon such audited or unaudited financial information or other information then available as it
deems relevant and (ii) cause the Participant to receive partial or full payment of Awards for each such Performance Period based upon the Committees determination of the degree of attainment of the Performance Goals, or assuming that the
applicable target levels of performance have been attained or on such other basis determined by the Committee.
To the extent practicable, any
actions taken by the Committee under the immediately preceding clauses (a) through (c) shall occur in a manner and at a time which allows affected Participants the ability to participate in the Change in Control transactions with respect
to the Common Shares subject to their Awards.
14. Amendments and Termination.
(a) Amendment and Termination of this Plan. The Board may amend, alter, suspend, discontinue, or terminate this Plan or any
portion thereof at any time; provided, that (i) no amendment to the definition of Eligible Person in Section 2(q), Section 5(b), Section 11(c) or Section 14(b) (to the extent required by the proviso in such
Section 14(b)) shall be made without stockholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval is necessary to comply with any tax or
regulatory requirement applicable to this Plan (including, without limitation, as necessary to comply with any rules or requirements of any national securities exchange or inter-dealer quotation system on which the Common Shares may be listed or
quoted or to prevent the Company from being denied a tax deduction under Section 162(m) of the Code); and, provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and
adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the prior written consent of the affected Participant, holder or beneficiary.
(b) Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award Agreement,
waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively; provided, however that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective
without the consent of the affected Participant.
15. General.
(a) Award Agreements. Each Award under this Plan shall be evidenced by an Award Agreement, which shall be delivered to the
Participant (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)) and shall specify the terms and conditions of the Award and any rules
applicable thereto, including without limitation, the effect on such Award of the
20
death, Disability or termination of employment or service of a Participant, or of such other events as may be determined by the Committee. The Companys failure to specify any term of any
Award in any particular Award Agreement shall not invalidate such term, provided such terms was duly adopted by the Board or the Committee.
(b) Nontransferability; Trading Restrictions.
(i) Each Award shall be exercisable only by a Participant during the Participants lifetime, or, if permissible under applicable law, by
the Participants legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or by the laws of descent and distribution and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit
Awards (other than Incentive Stock Options) to be transferred by a Participant, with or without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to preserve the purposes of this Plan, to:
(A) any person who is a family member of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act (collectively, the Immediate Family Members); (B) a trust solely
for the benefit of the Participant and his or her Immediate Family Members; or (C) a partnership or limited liability company whose only partners or stockholders are the Participant and his or her Immediate Family Members; or (D) any other
transferee as may be approved either (I) by the Board or the Committee in its sole discretion, or (II) as provided in the applicable Award Agreement (each transferee described in clauses (A), (B), (C) and (D) above is hereinafter
referred to as a Permitted Transferee); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the
Participant in writing that such a transfer would comply with the requirements of this Plan.
(iii) The terms of any Award transferred in
accordance with subparagraph (ii) above shall apply to the Permitted Transferee and any reference in this Plan, or in any applicable Award Agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that
(A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in
effect a registration statement on an appropriate form covering the Common Shares to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement
is necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under this
Plan or otherwise; and (D) the consequences of the termination of the Participants employment by, or services to, the Company or an Affiliate under the terms of this Plan and the applicable Award Agreement shall continue to be applied
with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in this Plan and the applicable Award Agreement.
21
(iv) The Committee shall have the right, either on an Award-by-Award basis or as a matter of
policy for all Awards or one or more classes of Awards, to condition the delivery of vested Common Shares received in connection with such Award on the Participants agreement to such restrictions as the Committee may determine.
(c) Tax Withholding.
(i) A Participant shall be required to pay to the Company or any Affiliate, or the Company or any Affiliate shall have the right and is hereby
authorized to withhold, from any cash, Common Shares, other securities or other property deliverable under any Award or from any compensation or other amounts owing to a Participant, the amount (in cash, Common Shares, other securities or other
property) of any required withholding taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under this Plan and to take such other action as may be necessary in the opinion of the Committee or the Company to
satisfy all obligations for the payment of such withholding and taxes. In addition, the Committee, in its discretion, may make arrangements mutually agreeable with a Participant who is not an employee of the Company or an Affiliate to facilitate the
payment of applicable income and self-employment taxes.
(ii) Without limiting the generality of clause (i) above, the Committee may,
in its sole discretion, permit a Participant to satisfy, in whole or in part, the foregoing withholding liability by (A) the delivery of Common Shares (which are not subject to any pledge or other security interest) owned by the Participant
having a fair market value equal to such withholding liability or (B) having the Company withhold from the number of Common Shares otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number of shares with a
fair market value equal to such withholding liability (but no more than the minimum required statutory withholding liability).
(d)
No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or an Affiliate, or other person, shall have any claim or right to be granted an Award under this Plan or, having been selected for the grant of
an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committees determinations and
interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither this Plan nor any action taken hereunder
shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an Affiliate, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Company or any of
its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under this Plan, unless otherwise expressly provided in this Plan or any Award Agreement. By
accepting an Award under this Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period
provided under this Plan
22
or any Award Agreement, notwithstanding any provision to the contrary in any written employment contract or other agreement between the Company and its Affiliates and the Participant, whether any
such agreement is executed before, on or after the Date of Grant.
(e) International Participants. With respect to
Participants who reside or work outside of the United States of America and who are not (and who are not expected to be) covered employees within the meaning of Section 162(m) of the Code, the Committee may in its sole discretion
amend the terms of this Plan or outstanding Awards (or establish a sub-plan) with respect to such Participants in order to conform such terms with the requirements of local law or to obtain more favorable tax or other treatment for such
Participants, the Company or its Affiliates.
(f) Designation and Change of Beneficiary. Each Participant may file with the
Committee a written designation of one or more persons as the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under this Plan upon his or her death. A Participant may, from time to time,
revoke or change his or her beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Committee. The last such designation filed with the Committee shall be controlling; provided, however, that
no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participants death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is
filed by a Participant, the beneficiary shall be deemed to be his or her spouse or, if the Participant is unmarried at the time of death, his or her estate. Upon the occurrence of a Participants divorce (as evidenced by a final order or decree
of divorce), any spousal designation previously given by such Participant shall automatically terminate.
(g) Termination of
Employment/Service. Unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment
or service with the Company to employment or service with an Affiliate (or vice-versa) shall be considered a termination of employment or service with the Company or an Affiliate; and (ii) if a Participants employment with the Company and
its Affiliates terminates, but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status shall not be considered a termination of employment with the Company or
an Affiliate for purposes of this Plan unless the Committee, in its discretion, determines otherwise.
(h) No Rights as a
Stockholder. Except as otherwise specifically provided in this Plan or any Award Agreement, no person shall be entitled to the privileges of ownership in respect of Common Shares that are subject to Awards hereunder until such shares have
been issued or delivered to that person.
(i) Government and Other Regulations.
(i) The obligation of the Company to settle Awards in Common Shares or other consideration shall be subject to all applicable laws, rules, and
regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or
23
conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Common Shares pursuant
to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares
may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the
Securities Act any of the Common Shares to be offered or sold under this Plan. The Committee shall have the authority to provide that all certificates for Common Shares or other securities of the Company or any Affiliate delivered under this Plan
shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under this Plan, the applicable Award Agreement, the federal securities laws, or the rules, regulations and other requirements of the Securities
and Exchange Commission, any securities exchange or inter-dealer quotation system upon which such shares or other securities are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, and, without limiting the
generality of Section 9 of this Plan, the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. Notwithstanding any provision in this Plan to the contrary, the Committee
reserves the right to add any additional terms or provisions to any Award granted under this Plan that it in its sole discretion deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to
whose jurisdiction the Award is subject.
(ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole
discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Companys acquisition of Common Shares from the public markets, the Companys issuance of Common Shares to the
Participant, the Participants acquisition of Common Shares from the Company and/or the Participants sale of Common Shares to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any
portion of an Award in accordance with the foregoing, unless doing so would violate Section 409A of the Code, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate Fair Market Value of the Common
Shares subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in
the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of Common Shares (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of
such Award or portion thereof. The Committee shall have the discretion to consider and take action to mitigate the tax consequence to the Participant in cancelling an Award in accordance with this clause.
(j) Payments to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under
this Plan is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if
the Committee so directs the Company, be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise
entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
24
(k) Nonexclusivity of this Plan. Neither the adoption of this Plan by the Board nor
the submission of this Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options or other equity-based awards otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No Trust or Fund Created. Neither this Plan nor any Award shall create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the other hand. No provision of this Plan or any Award shall require the Company, for the purpose of
satisfying any obligations under this Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records
or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under this Plan other than as general unsecured creditors of the Company, except that insofar as
they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees under general law.
(m) Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing
to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of the Company and/or its Affiliates and/or any other information furnished
in connection with this Plan by any agent of the Company or the Committee or the Board, other than himself.
(n) Relationship to
Other Benefits. No payment under this Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided
in such other plan.
(o) Governing Law. The Plan shall be governed by and construed in accordance with the internal laws of
the State of Delaware, without giving effect to the conflict of laws provisions.
(p) Severability. If any provision of this
Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify this Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the applicable laws in the manner that most closely reflects the original intent of the Award or the Plan, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of this Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder of this Plan and any such Award shall
remain in full force and effect.
25
(q) Obligations Binding on Successors. The obligations of the Company under this
Plan shall be binding upon any successor corporation or organization resulting from the merger, amalgamation, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of
the assets and business of the Company.
(r) Code Section 162(m) Approval. If so determined by the Committee, the
provisions of this Plan regarding Performance Compensation Awards shall be disclosed and reapproved by stockholders no later than the first stockholder meeting that occurs in the fifth year following the year in which stockholders previously
approved such provisions, in each case in order for certain Awards granted after such time to be exempt from the deduction limitations of Section 162(m) of the Code. Nothing in this clause, however, shall affect the validity of Awards granted
after such time if such stockholder approval has not been obtained.
(s) Expenses; Gender; Titles and Headings. The expenses
of administering this Plan shall be borne by the Company and its Affiliates. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in this Plan are for convenience of
reference only, and in the event of any conflict, the text of this Plan, rather than such titles or headings shall control.
(t)
Other Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of and/or the receipt of Common Shares under an Award, that the Participant execute lock-up, stockholder or other agreements, as it may
determine in its sole and absolute discretion.
(u) Section 409A. The Plan and all Awards granted hereunder are
intended to comply with, or otherwise be exempt from, the requirements of Section 409A of the Code. The Plan and all Awards granted under this Plan shall be administered, interpreted, and construed in a manner consistent with Section 409A
of the Code to the extent necessary to avoid the imposition of additional taxes under Section 409A(a)(1)(B) of the Code. Notwithstanding anything in this Plan to the contrary, in no event shall the Committee exercise its discretion to
accelerate the payment or settlement of an Award where such payment or settlement constitutes deferred compensation within the meaning of Section 409A of the Code unless, and solely to the extent that, such accelerated payment or settlement is
permissible under Section 1.409A-3(j)(4) of the Treasury Regulations. If a Participant is a specified employee (within the meaning of Section 1.409A-1(i) of the Treasury Regulations) at any time during the twelve (12)-month
period ending on the date of his termination of employment, and any Award hereunder subject to the requirements of Section 409A of the Code is to be satisfied on account of the Participants termination of employment, satisfaction of such
Award shall be suspended until the date that is six (6) months after the date of such termination of employment.
(v)
Payments. Participants shall be required to pay, to the extent required by applicable law, any amounts required to receive Common Shares under any Award made under this Plan.
26
Exhibit 5.1
ELLENOFF GROSSMAN & SCHOLE LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Telephone: (212) 370-1300 Facsimile: (212) 370-7889
www.egsllp.com
December 30,
2015
Empire Resorts, Inc.
c/o Monticello Casino and
Raceway
204 State Route 17B, P.O. Box 5013
Monticello, New
York 12701
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel
to Empire Resorts, Inc. (the Company) in connection with the preparation of the Companys Registration Statement on Form S-8 (the Registration Statement) being filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the Securities Act). The Registration Statement relates to the registration of (i) 2,585,708 shares (the Plan Shares) of common stock, par value $0.01 per share (the Common
Stock), issuable pursuant to the Empire Resorts, Inc. 2015 Equity Incentive Plan (the Plan) and (ii) the resale of 15,000 restricted shares (the Restricted Shares) of Common Stock granted pursuant to the Plan.
In arriving at the opinion expressed below, we have examined and relied on the following documents:
(1) the Amended and Restated Certificate of Incorporation of the Company, dated as of February 16, 2011 and the Certificates of Amendment
to the Amended and Restated Certificate of Incorporation of the Company, dated as of December 13, 2011 and December 21, 2015, and the Second Amended and Restated Bylaws of the Company, dated as of March 14, 2011;
(2) the Plan; and
(3) records of
meetings and consents of the Board of Directors of the Company provided to us by the Company.
In addition, we have examined and relied on
the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of the Company and such
other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below. In such examination, we have assumed, without independent verification, the genuineness of all signatures (whether
original or photostatic), the accuracy and completeness of each document submitted to us, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic,
certified, conformed or photostatic copies thereof. We have further assumed the legal capacity of natural persons, that persons identified to us as officers of the Company are actually serving in such capacity, that the representations of officers
and employees of the Company are correct as to questions of fact and that each party to the documents we have examined or relied on (other than the Company) has the power, corporate or other, to enter into and perform all obligations thereunder and
also have assumed the due authorization by all requisite action, corporate or other, of the execution and delivery by such parties of such documents, and the validity and binding effect thereon on such parties. We have not independently verified any
of these assumptions.
The opinions expressed in this opinion letter are limited to the General Corporation Law of the
State of Delaware. We are not opinion on, and we assume no responsibility for, the applicability or effect on any of the matters covered herein of: (a) any other laws; (b) the laws of any other jurisdiction; or (c) the laws of any
country, municipality or other political subdivision or local government agency or authority. The opinions set forth below are rendered as of the date of this opinion letter. We assume no obligation to update or supplement such opinions to reflect
any change of law or fact that may occur.
Based upon and subject to the foregoing, it is our opinion that: (i) the Restricted Shares
are duly authorized, validly issued, fully paid and nonassessable and (ii) the Plan Shares have been duly authorized and, upon issuance and payment therefore in accordance with the terms of the Plan and the agreements or certificates issued
thereunder, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we are experts with respect to any part of the Registration Statement within the meaning of the term expert as used in Section 11 of the Securities Act or
the rules and regulations promulgated thereunder by the Securities and Exchange Commission, nor do we admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Securities and Exchange Commission promulgated thereunder.
|
Very truly yours, |
|
/s/ Ellenoff Grossman & Schole LLP |
ELLENOFF GROSSMAN & SCHOLE LLP |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-00000) pertaining to the 2015 Equity Incentive Plan of
Empire Resorts, Inc. of our reports dated March 10, 2015, with respect to the consolidated financial statements and schedule of Empire Resorts, Inc. and the effectiveness of internal control over financial reporting of Empire Resorts, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.
|
/s/ Ernst & Young LLP |
|
Philadelphia, Pennsylvania |
December 30, 2015 |
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