UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or Section 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 29, 2014

 

 

EMPIRE RESORTS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-12522   13-3714474

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

c/o Monticello Casino and Raceway, 204 State

Route 17B,

P.O. Box 5013, Monticello, NY

  12701
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (845) 807-0001

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01. Entry into a Material Definitive Agreement

Effective as of June 30, 2013 (the “Closing Date”), the Company, Kien Huat Realty III Ltd., Colin Au Fook Yew and Joseph D’Amato (the “Company Parties”) entered into a Settlement Agreement and Release (the “Settlement Agreement”) with Stanley Stephen Tollman (“Tollman”) and Bryanston Group, Inc. (“Bryanston Group” and, together with Tollman, the “Bryanston Parties”). Pursuant to the Settlement Agreement, the Company Parties and the Bryanston Parties (together, the “Settlement Parties”) agreed to the settlement of certain claims relating to shares of Series E Preferred Stock of the Company (the “Preferred Stock”) held by the Bryanston Parties and that certain Recapitalization Agreement, dated December 10, 2002, by and between, among others, the Bryanston Parties and a predecessor to the Company, pursuant to which the Bryanston Parties acquired the Preferred Stock.

In consideration for the mutual release of all claims, the Company agreed to redeem the Preferred Stock from the Bryanston Parties, and the Bryanston Parties agreed to sell the Preferred Stock to the Company, in accordance with an agreed-upon schedule and purchase price (the “Redemption Schedule”) and based upon the closing by the Company of third party financing in an aggregate amount sufficient to enable the Company to complete the construction of its planned gaming facility in Sullivan County, New York (the “Concord Event”).

Effective May 29, 2014, the Settlement Parties entered into a side letter amendment to the Settlement Agreement (the “Letter Agreement”), pursuant to which the Redemption Schedule was revised. As per the Letter Agreement, the Company may, in its sole discretion redeem the Preferred Stock prior to the occurrence of the Concord Event at a purchase price consistent with the Redemption Schedule notwithstanding whether a Concord Event has occurred (“Early Redemption”). Moreover, the Company shall be required to redeem the Preferred Stock upon being awarded a gaming facility license by the New York State Gaming Commission and paying the required license fee at a purchase price consistent with the Redemption Schedule notwithstanding whether a Concord Event has occurred (“Mandatory Redemption”). Unless and until an Early Redemption or Mandatory Redemption occurs, the existing terms and conditions of the Settlement Agreement remain unaffected and the obligations unmodified.

Item 5.02.         Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

The Company entered into Amendment No. 1 to the Employment Agreements (collectively the “Employment Agreement Amendments”) of each of Joseph A. D’Amato, the Chief Executive Officer (“D’Amato”), Laurette J. Pitts, the Senior Vice President, Chief Operating Officer and Chief Financial Officer (“Pitts”) and Nanette L. Horner, the Senior Vice President, Chief Counsel and Chief Compliance Officer of the Company (“Horner” and, together with D’Amato and Pitts, the “Executives”). The Employment Agreements of each of Pitts and Horner were amended to: (i) extend the termination date of the Employment Agreements, (ii) update the base salary and (iii) implement changes in title, as applicable, in accordance with the table below:

 

Executive

  

Termination Date

  

Base Salary Change

  

Title

Laurette J. Pitts    December 31, 2014 updated to December 31, 2015    Base salary increased from $230,000 to $240,000    Title of “Senior Vice President” will be replaced with “Executive Vice President”. The remaining titles are unchanged.
Nanette L. Horner    December 31, 2014 updated to December 31, 2015    Base salary increased from $215,000 to $225,000    Title of “Senior Vice President” will be replaced with “Executive Vice President”. The remaining titles are unchanged.

In addition to the changes detailed above, the Employment Agreement of each Executive was amended to supplement the definition of “Change in Control” such that the following will also constitute a Change in Control:

“The individuals who, as of the date hereof, constitute the members of the Board (the ‘Current Board Members’) cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.”

This summary description is qualified in its entirety by reference to the actual Employment Agreement Amendments, which are filed as Exhibit 10.1 through 10.3 to this Form 8-K and are incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

  (d) Exhibits.
10.1    Amendment No. 1 to Employment Agreement with Joseph A. D’Amato, dated May 29, 2014
10.2    Amendment No. 1 to Employment Agreement with Laurette J. Pitts, dated May 29, 2014
10.3    Amendment No. 1 to Employment Agreement with Nanette L. Horner, dated May 30, 2014

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: June 3, 2014

 

EMPIRE RESORTS, INC.
By:  

/s/ Joseph A. D’Amato

Name:   Joseph A. D’Amato
Title:   Chief Executive Officer

Exhibit Index

 

10.1    Amendment No. 1 to Employment Agreement with Joseph A. D’Amato, dated May 29, 2014
10.2    Amendment No. 1 to Employment Agreement with Laurette J. Pitts, dated May 29, 2014
10.3    Amendment No. 1 to Employment Agreement with Nanette L. Horner, dated May 30, 2014

Exhibit 10.1

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

This Amendment No. 1 to the Employment Agreement (this “Amendment”), is entered into as of May 29, 2014, by and between Empire Resorts, Inc., a Delaware corporation (the “Company”), and Joseph A. D’Amato (the “Executive” and, together with the Company, “the Parties”).

WITNESSETH:

WHEREAS , Empire and Executive entered into an Employment Agreement dated as of November 26, 2012 (hereinafter the “Employment Agreement”); and

WHEREAS , the Parties desire to amend the Employment Agreement.

NOW, THEREFORE , the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:

 

1. Section 5(b) will be deleted in its entirety and replaced with the following:

“For purposes of this Agreement, ‘Change in Control’ shall be deemed to have occurred if:

i. a tender offer (or series of related offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

iii. the Company shall sell substantially all of its assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries and their affiliates;

iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or

v. The individuals who, as of the date hereof, constitute the members of the Board (the “Current Board Members”) cease, by reason of a financing, merger, combination, acquisition,

 

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takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.

For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the “Exchange Act”). In addition, for such purposes, “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportion as their ownership of stock of the Company.”

The Parties hereby agree that, except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment Agreement as modified by this Amendment.

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first written above.

 

EMPIRE RESORTS, INC.
By:  

/s/ Laurette J. Pitts

  Name:   Laurette J. Pitts
  Title:   Senior Vice President, Chief Operating Officer and Chief Executive Officer
EXECUTIVE

/s/ Joseph A. D’Amato

Joseph A. D’Amato

 

2

Exhibit 10.2

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

This Amendment No. 1 to the Employment Agreement (this “Amendment”), is entered into as of May 29, 2014, by and between Empire Resorts, Inc., a Delaware corporation (the “Company”), and Laurette J. Pitts (the “Executive” and, together with the Company, “the Parties”).

WITNESSETH:

WHEREAS , Empire and Executive entered into an Employment Agreement dated as of August 17, 2012 (hereinafter the “Employment Agreement”); and

WHEREAS , the Parties desire to amend the Employment Agreement.

NOW, THEREFORE , the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:

1. Section 1 shall be amended by deleting the date “December 31, 2014” and inserting the date “December 31, 2015” in place thereof.

2. Section 2(a) shall be amended by deleting the phrase “Senior Vice President” and inserting the phrase “Executive Vice President” in place thereof.

3. Section 3 shall be amended by deleting the amount “Two Hundred Thirty Thousand Dollars ($230,000)” and inserting the amount “Two Hundred Forty Thousand Dollars ($240,000)” in place thereof.

4. Section 5(b) will be deleted in its entirety and replaced with the following:

“For purposes of this Agreement, ‘Change in Control’ shall be deemed to have occurred if:

i. a tender offer (or series of related offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

iii. the Company shall sell substantially all of its assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries and their affiliates;

 

1

iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or

v. The individuals who, as of the date hereof, constitute the members of the Board (the “Current Board Members”) cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.

For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the “Exchange Act”). In addition, for such purposes, “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportion as their ownership of stock of the Company.”

The Parties hereby agree that except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment Agreement as modified by this Amendment.

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first written above.

 

EMPIRE RESORTS, INC.
By:  

/s/ Joseph A. D’Amato

  Name:   Joseph A. D’Amato
  Title:   Chief Executive Officer
EXECUTIVE

/s/ Laurette J. Pitts

Laurette J. Pitts

 

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Exhibit 10.3

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

This Amendment No. 1 to the Employment Agreement (this “Amendment”), is entered into as of May 30, 2014, by and between Empire Resorts, Inc., a Delaware corporation (the “Company”), and Nanette L. Horner (the “Executive” and, together with the Company, “the Parties”).

WITNESSETH:

WHEREAS , Empire and Executive entered into an Employment Agreement dated as of August 22, 2012 (hereinafter the “Employment Agreement”); and

WHEREAS , the Parties desire to amend the Employment Agreement.

NOW, THEREFORE , the Parties hereto agree to amend the Employment Agreement as follows, effective as of July 1, 2014:

1. Section 1 shall be amended by deleting the date “December 31, 2014” and inserting the date “December 31, 2015” in place thereof.

2. Section 2(a) shall be amended by deleting the phrase “Senior Vice President” and inserting the phrase “Executive Vice President” in place thereof.

3. Section 3 shall be amended by deleting the amount “Two Hundred Fifteen Thousand Dollars ($215,000)” and inserting the amount “Two Hundred Twenty Five Thousand Dollars ($225,000)” in place thereof.

4. Section 5(b) will be deleted in its entirety and replaced with the following:

“For purposes of this Agreement, ‘Change in Control’ shall be deemed to have occurred if:

i. a tender offer (or series of related offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company, unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the commencement of such offer), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

ii. the Company shall be merged or consolidated with another corporation, unless as a result of such merger or consolidation more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries, and their affiliates;

iii. the Company shall sell substantially all of its assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to such transaction), any employee benefit plan of the Company or its Subsidiaries and their affiliates;

 

1

iv. a Person (as defined below) shall acquire 50% or more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the shareholders of the Company (as of the time immediately prior to the first acquisition of such securities by such Person), any employee benefit plan of the Company or its Subsidiaries, and their affiliates; or

v. The individuals who, as of the date hereof, constitute the members of the Board (the “Current Board Members”) cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary course transaction affecting the Company, to constitute at least a majority of the members of the Board unless such change is approved by the Current Board Members.

For purposes of this Section 5(b), ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange Act of 1934, as amended (the “Exchange Act”). In addition, for such purposes, “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or any of its Subsidiaries; (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Subsidiaries; (C) an underwriter temporarily holding securities pursuant to an offering of such securities; or (D) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportion as their ownership of stock of the Company.”

The Parties hereby agree that, except as specifically provided in and modified by this Amendment, the Employment Agreement is in all other respects hereby ratified and confirmed and references to the Employment Agreement shall be deemed to refer to the Employment Agreement as modified by this Amendment.

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first written above.

 

EMPIRE RESORTS, INC.
By:  

/s/ Joseph A. D’Amato

  Name:   Joseph A. D’Amato
  Title:   Chief Executive Officer
EXECUTIVE

/s/ Nanette L. Horner

Nanette L. Horner

 

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