UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
____________________
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
EMPIRE
RESORTS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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13-3714474
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(State
of Incorporation or Organization)
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(I.R.S.
Employer Identification no.)
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701
N. Green Valley Parkway, Suite 200, Henderson, NV
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89074
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(Address
of Principal Executive Offices)
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(Zip
Code)
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If
this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to general
Instruction A.(c), please check the following box.
x
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If
this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box.
o
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Securities
Act registration statement file number to which this form
relates:
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(If
applicable)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of each class
to
be so registered
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Name
of Each Exchange on Which Each Class is to be
Registered
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Rights
to Purchase Series A Junior Participating Preferred Stock
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Nasdaq
Global Market
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Securities
to be registered pursuant to Section 12(g) of the Act:
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None
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(Title
of Class)
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(Title
of Class)
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Item
1.
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Description of Securities To Be
Registered
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On March 24, 2008, the Board of
Directors of Empire Resorts, Inc (the “Company”) approved the entry into a
rights agreement (the “Rights Agreement”) with Continental Stock Transfer &
Trust Company, as rights agent (the “Rights Agent”). To implement the
purpose of the Rights Agreement, the Board of Directors of the Company
authorized and declared a dividend distribution of one right (a “Right”) for
each outstanding share of common stock, par value $0.01 per share, of the
Company (the “Common Stock”) to stockholders of record at the close of business
on April 3, 2008 (the “Record Date”) and one Right for each share of Common
Stock issued between the Record Date and the Distribution Date (as defined
below). Each Right entitles the registered holder to purchase from
the Company a unit consisting of one one-thousandth of a share (a “Unit”) of
Series A Junior Participating Preferred Stock, par value $0.01 per share (the
“Series A Preferred Stock”) at a purchase price of $20 per Unit, subject to
adjustment (the “Purchase Price”).
Distribution
Date/Exercisability
Initially, the Rights will be attached
to all shares of Common Stock then outstanding and no separate certificates with
respect to the Rights (“Rights Certificates”) will be
distributed. Subject to certain exceptions specified in the Rights
Agreement, the Rights will separate from the Common Stock and a “Distribution
Date” will occur upon the earlier of (i) the close of business on the 10th
business day after a public announcement that a person or group of affiliated or
associated persons (an “Acquiring Person”) has acquired beneficial ownership of
20% or more of the outstanding shares of Common Stock (the “Stock Acquisition
Date”), other than as a result of repurchases of stock by the Company, certain
inadvertent actions by stockholders or the beneficial ownership by a person of
20% or more of the outstanding Common Stock as of March 24, 2008 (or if the 10th
business day after the Stock Acquisition Date occurs before the Record Date, the
close of business on the Record Date), or (ii) the close of business on the 10th
business day (or such later date as the Board of Directors determines) after the
commencement of a tender offer or exchange offer that would result in a person
or group becoming an Acquiring Person, other than as a result of a Qualified
Offer (as defined below).
Until the Distribution Date, (i) the
Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates, (ii) new Common
Stock certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate. Pursuant to the Rights Agreement, the Company reserves
the right to require prior to the occurrence of a Triggering Event (as defined
below) that, upon any exercise of Rights, a number of Rights be exercised so
that only whole shares of Series A Preferred Stock will be issued.
The Rights are not exercisable until
the Distribution Date and will expire upon the earlier of (i) 5:00 P.M., New
York City time, on March 24, 2010, or such later date as may be established by
the Board, (ii) the eleventh (11th) Business Day following the date, if any,
upon which the Company stockholders have, at a meeting duly called and not
subsequently postponed or adjourned, considered and failed to approve the Rights
Agreement (an “Adverse Stockholder Determination”), if, and only if, the Company
has failed to provide written notice to the Rights Agent of its intention to
treat such Adverse Stockholder Determination as advisory within 10 business days
of such Adverse Stockholder Determination (the date referred to in clause (i) or
(ii), the “Final Expiration Date”), or (iii) the time at which the Rights are
redeemed or exchanged as provided in the Rights Agreement (the earliest of (i),
(ii) and (iii) being referred to herein as the “Expiration Date”).
As soon as practicable after the
Distribution Date, Rights Certificates will be mailed to holders of record of
the Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent the
Rights.
Flip-In
In the event that a person becomes an
Acquiring Person, except pursuant to a “Flip-Over” event, as described below, or
an offer for all outstanding shares of Common Stock that the independent
directors determine to be fair and not inadequate and to otherwise be in the
best interests of the Company and its stockholders, after receiving advice from
one or more investment banking firms (a “Qualified Offer”), then promptly
following the later of the occurrence of such event and the Record Date, each
holder of a Right will thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the exercise price of the
Right. Notwithstanding any of the foregoing, following the occurrence
of the event described in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of the event set forth above until such
time as the Rights are no longer redeemable by the Company as set forth
below.
Flip-Over
In the event that, at any time
following the Stock Acquisition Date (i) the Company engages in a merger or
other business combination transaction in which the Company is not the surviving
corporation (other than with an entity that acquired the shares pursuant to a
Qualified Offer), (ii) the Company engages in a merger or other business
combination transaction in which the Company is the surviving corporation and
the Common Stock of the Company is changed or exchanged, or (iii) 50% or more of
the Company’s assets, cash flow or earning power is sold or transferred, each
holder of a Right (except Rights which have previously been voided as set forth
above) would thereafter have the right to receive, upon exercise, common stock
of the acquiring company having a value equal to two times the exercise price of
the Right. The events set forth in this paragraph and in the
preceding paragraph are referred to as the “Triggering Events.”
Exchange
At any time after a person becomes an
Acquiring Person and prior to the acquisition by such person or group of 50% or
more of the outstanding voting capital stock, the Board of Directors may
exchange the Rights (other than Rights owned by such person or group which have
become void), in whole or in part, for Common Stock at an exchange ratio of one
share of Common Stock (or of a share of a class or series of the Company’s
preferred stock having equivalent rights, preferences and privileges), per Right
(subject to adjustment).
Adjustment
The Purchase Price, the number and kind
of shares covered by each Right and the number of Rights outstanding are subject
to adjustment from time to time as provided in the Rights
Agreement. With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. No fractional Units will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Series A Preferred Stock on the last trading date prior to the date of
exercise.
Redemption
At any time prior to the earlier of (i)
the close of business on the 10th business day following the Stock Acquisition
Date (or, if the Stock Acquisition Date has occurred prior to the Record Date,
the close of business on the 10th business day following the Record Date), or
(ii) the Final Expiration Date, the Company may redeem the Rights in whole, but
not in part, at a price of $0.001 per Right (payable in cash, Common Stock or
other consideration deemed appropriate by the Board of
Directors). Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the $0.001 redemption
price.
Rights of
Holders
Until a Right is exercised, the holder
thereof, as such, will have no separate rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends in
respect of the Rights.
Series A Preferred
Stock
Because of the nature of the Series A
Preferred Stock’s dividend, liquidation and voting rights, the value of the one
one-thousandth interest in the Series A Preferred Stock purchasable upon
exercise of each Right should approximate the value of one share of Common
Stock.
Tax
Considerations
While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company or in the event of the
redemption of the Rights as set forth above.
Certain Anti-Takeover
Effects
The Rights will not prevent a takeover
of the Company. However, the Rights may cause substantial dilution to a person
or group that acquires 20% or more of the outstanding Common Stock. The Rights
however, should not interfere with any merger or other business combination
approved by the Board of Directors of the Company.
Amendment
The Board of Directors of the Company
may amend any of the provisions of the Rights Agreement prior to the
Distribution Date. After the Distribution Date, the Board of
Directors may amend the provisions of the Rights Agreement in order to cure any
ambiguity, to make changes that do not adversely affect the interests of holders
of Rights, or to shorten or lengthen any time period under the Rights
Agreement. The foregoing notwithstanding, no amendment may be made at
such time as the Rights are not redeemable except to cure any ambiguity or to
correct or supplement any provision contained in the Rights Agreement which may
be defective or inconsistent with any other provisions contained
therein.
Further
Information
The Rights Agreement between the
Company and the Rights Agent specifying the terms of the Rights, which includes
as Exhibit B thereto the form of Rights Certificate, is attached as Exhibit 1
hereto and is incorporated herein by reference. The foregoing
description does not purport to be complete and is qualified in its entirety by
reference to the description of the Rights and the terms set forth in the Rights
Agreement.
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Item
2.
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Exhibits
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1.
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Rights
Agreement, dated as of March 24, 2008, between Empire Resorts, Inc. and
Continental Stock Transfer & Trust Company, which includes the form of
Certificate of Designation setting forth the terms of the Series A Junior
Participating Preferred Stock, par value $0.01 per share, as Exhibit A,
the form of Rights Certificate as Exhibit B and the Summary of Rights to
Purchase Series A Junior Participating Preferred Stock as Exhibit
C.
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SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
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Dated:
March 24, 2008
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EMPIRE
RESORTS, INC.
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By:
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/s/
David P.
Hanlon
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Name:
David P.
Hanlon
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Title:
Chief Executive
Officer
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