Item
1.01.
|
Entry into a Material
Definitive Agreement.
|
On June 3, 2009, Empire Resorts, Inc.
(the “Company”) and Monticello Raceway Management, Inc., a wholly owned
subsidiary of the Company, entered into a letter agreement (the “Agreement”)
with KPMG Corporate Finance LLC (“KPMGCF”) whereby the Company retained KPMGCF
as the Company’s exclusive financial advisor to raise for the Company up to $75
million in newly sourced capital (the “Transaction”) to address pending maturity
and contractual issues relating to the Company’s $65 million Convertible Senior
notes due July 31, 2014, which the holders have the right to require the Company
to repurchase on July 31, 2009, and the transaction costs related
thereto.
The
Transaction may include, with respect to new funds sourced by KPMGCF pursuant to
the Agreement: (i) a private placement of equity securities or debt obligations
of the Company and/or any affiliate or subsidiary thereof, in one or more
related transactions, to one or more “Accredited Investors” and/or source(s) of
financing, in the form of debt obligations (including term and revolving debt
and credit support facilities such as letters of credit), common stock,
convertible preferred stock, convertible debt securities, preferred stock,
equity-linked securities, warrants, equity or equity-linked joint ventures or
other equity or equity-linked arrangements and/or (ii) the direct repurchase or
retirement of all or a portion of the existing debt obligations of the
Company.
The
Agreement became effective as of June 3, 2009 and will continue until September
30, 2009. The Agreement may be extended thereafter upon the mutual written
agreement of both parties or terminated after the expiration of 14 days after
either party gives written notice of termination to the other party, except for
certain provisions that survive termination of the Agreement.
Pursuant
to the terms of the Agreement, the Company will pay to KPMGCF (i) a retainer of
$75,000, (ii) a monthly fee of $60,000 and (iii) upon consummation of a
Transaction, a percentage-based fee calculated with regard to the size of such
transaction, subject to a minimum fee of $500,000.
On June
8, 2009, the Company entered into an employment agreement, dated as of June 1,
2009, with Joseph E. Bernstein (the “Employment Agreement”), which sets forth
terms and provisions governing Mr. Bernstein's employment as Chief Executive
Officer of the Company. The Employment Agreement provides for an
initial term that expires on December 31, 2009 at an annual base salary of
$500,000 and will continue for a subsequent one (1) year extension if the
Company has successfully restructured its debt during the initial six-month
term. In addition, Mr. Bernstein shall be entitled to participate in
any annual bonus plan or equity based incentive programs maintained by the
Company for its senior executives. In connection with his employment,
Mr. Bernstein received an option grant of a 5-year non-qualified stock option to
purchase 500,000 shares of the Company’s common stock pursuant to the 2005
Equity Incentive Plan, subject to shareholder approval, at an exercise price per
share of $1.78, vesting 33% six (6) months following the grant date, 33% on the
first anniversary of the grant and 34% 18 months following the grant, subject to
earlier vesting as provided in the Employment Agreement. Mr.
Bernstein received an additional option grant of a 10-year non-qualified stock
option to purchase 1,000,000 shares, at an exercise price per share of $1.78,
subject to shareholder approval and the consummation of debt restructuring
transaction with an entity sourced by Mr. Bernstein.
The
foregoing summaries of the Agreement and the Employment Agreement do not purport
to be complete and are subject to and qualified in their entirety by reference
to the actual text of such agreements, copies of which are attached hereto as
Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated herein by
reference.
Item
9.01.
|
Financial Statements
and Exhibits.
|
(d) Exhibits
|
Exhibit
No
.
|
Exhibits
|
|
|
|
|
10.1
|
Letter
Agreement by and among Empire Resorts, Inc., Monticello Raceway
Management, Inc. and KPMG Corporate Finance LLC dated as of June 3,
2009.*
|
|
|
|
|
10.2
|
Employment
Agreement, dated as of June 1, 2009, between Empire Resorts, Inc. and
Joseph E. Bernstein.*
|
*
Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company agrees to furnish supplementally a copy of any omitted schedule to the
SEC upon request.
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.
|
EMPIRE
RESORTS, INC.
|
|
|
|
|
Dated: June
8, 2009
|
By:
|
/s/
Joseph E. Bernstein
|
|
Name:
Joseph E. Bernstein
|
|
Title:
Chief Executive Officer
|