UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
Amendment
No. 1
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[X]
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the
fiscal year ended December 31, 2007
OR
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[ ]
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from ________________ to
________________
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Commission
file number 1-12522
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(Exact
name of registrant as specified in its charter)
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(State
or other jurisdiction 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
89074
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(Address
of principal executive
offices)
(Zip Code)
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Registrant’s
telephone number, including area code (702)
990-3355
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Securities
registered under Section 12(b) of the Act:
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Title
of each class
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Name
of each exchange on which registered
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Common
Stock, $.01 par value per share
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5-1/2%
Secured Convertible Notes Due 2014
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Securities
registered under Section 12(g) of the Act:
Common
Stock, $.01 par value per share
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(Title
of class)
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Indicate by
check mark if the registrant is a well-known seasoned issuer, as defined
in Rule 405 of the Securities Act.
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Yes
[ ] No [X]
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Indicate by check
mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act.
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Yes
[ ] No
[X]
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Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes [X]
No [ ]
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form
10-K
[ ]
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
definitions of “large accelerated filer,” “accelerated 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 [X]
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Non-accelerated
filer [ ]
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Smaller
reporting
company [ ]
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Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Act).
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Yes
[ ] No
[X]
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The
aggregate market value of the issuer’s common equity held by non-affiliates, as
of June 29, 2007 was $196,077,737, based on the closing price of the common
stock on the Nasdaq Global Market.
As of
March 11, 2008, there were 29,699,601 shares of the issuer’s common equity
outstanding.
DOCUMENTS
INCORPORATED BY REFERENCE
None.
INDEX
EXPLANATORY
PARAGRAPH
The
purpose of this Amendment No. 1 on Form 10-K/A (the “Amendment”) is to amend and
restate Part III of our previously filed Annual Report on Form 10-K for the year
ended December 31, 2007, filed with the Securities Exchange Commission on March
17, 2008 (the “Original Form 10-K”), to include information previously omitted
in reliance on General Instruction G to Form 10-K, which provides that
registrants may incorporate by reference certain information from a definitive
proxy statement prepared in connection with the election of directors. Empire
Resorts, Inc. (the “Company”) has determined to include such Part III
information by amendment of the Original Form 10-K rather than by incorporation
by reference to the proxy statement. Accordingly, Parts III and IV of the
Original Form 10-K is hereby amended and restated as set forth
below.
There are
no other changes to the Original Form 10-K other than those outlined above. This
Amendment does not reflect events occurring after the filing of the Original
Form 10-K, nor does it modify or update disclosures therein in any way other
than as required to reflect the amendment set forth below. Among other things,
forward-looking statements made in the Original Form 10-K have not been revised
to reflect events that occurred or facts that became known to us after the
filing of the Original Form 10-K, and such forward looking statements should be
read in their historical context.
PART III
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Item 10.
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Directors
and Executive Officers of the
Registrant.
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Procedures
by Which Stockholders May Recommend Nominees to the Board of
Directors
At a
meeting held on February 25, 2008, the Board of Directors of the Company
approved and adopted an amendment (the “Bylaw Amendment”) to the Second Amended
and Restated Bylaws of the Company (the “Bylaws”). The purpose of the
Bylaw Amendment is to add an “advance notice provision” to the Bylaws, requiring
the stockholders to give prior written notice in connection with any proposal to
be brought for the vote of the stockholders at an annual or a special
meeting. In particular, stockholders of record may nominate one or
more persons for election as directors at the annual meeting of stockholders or
propose business to be brought before the annual meeting of stockholders, or
both, only if (i) such business is a proper matter for stockholder action under
Delaware law and (ii) the stockholder has given timely notice in proper written
form of such stockholder’s intent to make such nomination or nominations or to
propose such business.
To
be timely, a stockholder’s notice relating to the annual meeting must be
delivered to the Secretary at the principal executive offices of the Company not
less than 120 or more than 180 days prior to the first anniversary
(the “Anniversary”) of the date on which the Company first mailed its
proxy materials for the preceding year’s annual meeting of stockholders.
However, if the date of the annual meeting is advanced more than 30 days prior
to or delayed by more than 30 days after the Anniversary of the preceding year’s
annual meeting, then notice by the stockholder to be timely must be delivered to
the Secretary at the principal executive offices of the Company not later than
the close of business on the later of (i) the 90th day prior to such annual
meeting or (ii) the 15th day following the day on which public announcement of
the date of such meeting is first made. With respect to the annual
meeting of stockholders to be held in 2008, notice by the stockholder to be
timely must be so delivered not later than the close of business on the 10th day
following the date on which notice of the Bylaw Amendment was made
public.
To
be in proper form a stockholder’s notice to the Secretary must be in writing and
must set forth (i) the name and address of the stockholder who intends to make
the nomination(s) or propose the business and, as the case may be, of the person
or persons to be nominated or of the business to be proposed, (ii) a
representation that the stockholder is a holder of record of stock of the
Company, that the stockholder intends to vote such stock at such meeting and, in
the case of nomination of a director or directors, intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice, (iii) in the case of nomination of a director or directors, a
description of all arrangements or understandings between the stockholder and
each nominee or any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder, (iv) such other information regarding each nominee or each matter
of business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to Regulation 14A promulgated by
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), had the nominee been
nominated, or intended to be nominated, or the matter been proposed, or intended
to be proposed, by the Board of Directors of the Company, (v) the class and
number of shares of the Company which are owned of record and beneficially owned
by the stockholder and (vi) in the case of nomination of a director or
directors, the written consent of each nominee to serve as a director of the
Company if so elected.
The
chairman or presiding officer of an annual meeting of stockholders may refuse to
acknowledge the nomination of any person or the proposal of any business not
made in compliance with the foregoing procedures. The business to be conducted
at a special meeting of stockholders is to be limited to the business set forth
in the notice of meeting sent by the Company.
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Item 11
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Executive
Compensation.
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Compensation
Discussion and Analysis
Objectives
of Our Compensation Program
Our
compensation programs are intended to encourage executives and other key
personnel to create sustainable growth in value for our
stockholders. In particular, the objectives of our programs are
to:
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attract,
retain, and motivate superior
talent;
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ensure
that compensation is commensurate with our performance and stockholder
returns;
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provide
performance awards for the achievement of strategic objectives that are
critical to our long term growth;
and
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ensure
that our executive officers and key personnel have financial incentives to
achieve sustainable growth in stockholder
value.
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Business
Strategy
Our 2008
business strategy for building sustainable growth in stockholder value remains
similar to the strategy we have employed for the past few years. Key
components of the strategy are as follows:
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Improve
our operating efficiencies to the point where we are once again
profitable;
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Enter
into strategic joint ventures which help drive our
growth;
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Secure
a Class III gaming license for a facility to be part of our existing New
York operation; and
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Take
advantage of opportunities which can help us
grow.
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Elements
of Our Executive Compensation Structure
Our
compensation structure consists of two tiers of remuneration. The
first tier consists of base pay, and a suite of retirement, health, and welfare
benefits. The second tier consists of both short and long term
incentive compensation.
Base pay
and benefits are designed to be sufficiently competitive to attract and retain
world class executives
Our short
term incentive plan provides for cash bonuses to be paid to executives based on
individual and corporate performance.
Commencing
in 2008, the Compensation Committee intends to establish preset goals, and
amounts of short term incentive which will be paid for achieving those
goals.
Bonuses
of $10,000 and $12,000 were paid in 2007 to our Chief Compliance Officer and
Chief Operating Officer, with respect to the 2006 fiscal year. No
other bonuses were paid with respect to the 2006 fiscal year. In
addition, no bonuses will be paid in 2008 with respect to the 2007 fiscal
year.
Our long
term incentive plan provides for awards of stock options, restricted stock, and
other equity based incentives. These are designed to reward
executives for the achievement of longer term objectives which result in an
increase in share value.
Reasons
for the Current Incentive Plan Structure
In 2008,
the Company will continue to focus on our racing and video gaming businesses and
we will continue to pursue property development opportunities through strategic
alliances. In addition, we will continue to pursue a Class III gaming
license. If successfully pursued, this strategy will eventually
result in the creation of additional and sustainable share value.
Our short
term incentive plan will reward executives for the achievement of milestones
which are critical to our business strategy, coupled with cost cutting and other
ways of improving our operating efficiency. Bonuses will only be paid
to the extent objectives are achieved and the operating performance of the
Company so warrants.
Awards
outstanding under the long term incentive plan currently consist of stock
options, as well as restricted stock. In future years, we may also
make grants of other equity based awards. The long term incentive
plan is designed to reward executives for increasing long term share
value. This will be accomplished by the successful execution of the
Company’s business objectives, coupled with the consistent achievement of
profitability goals. The long term incentive plan will keep
executives focused on both revenue and profit growth, and it can potentially be
a very significant source of compensation for executive officers in the long
term.
How
We Determine to Pay What We Pay
Our cash
compensation policy is based on:
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The
Company’s philosophy of providing significant pay at
risk
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Individual
and corporate performance
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In
setting base pay, the Compensation Committee pays at a level which is necessary
to attract and retain the level of talent it needs. Compensation for
the Company’s chief executive officer (“CEO”) and chief financial officer
(“CFO”) was first set in their three year employment contracts, entered into on
May 23, 2005. The employment contracts state that the Compensation
Committee shall review base pay annually, and make upward adjustments, as it
deems appropriate. The CEO’s salary was set at $500,000, and it has
stayed at that level since the inception of the employment
contract. The CFO’s salary was set at $275,000 in his employment
contract. In 2007, the Compensation Committee exercised its
discretion and raised the CFO’s base pay from $275,000 to $310,000.
Exceptional
individual and corporate performance is rewarded via the annual bonus program,
and is not reflected in base pay. The Compensation Committee pays
close attention to internal equity when it sets pay. In particular,
it takes into account the relative value of its individual executive officer
jobs, as well as the value of the jobs immediately below the executive officer
level. Periodically, the Compensation Committee references base pay
practices at public companies of a similar size, to help ensure base pay remains
broadly within a competitive range.
In the
future, the Compensation Committee intends to set annual cash bonus opportunity
by (1) setting predetermined goals connected to the Company’s business
strategy, and (2) specifying the amount of bonus which will be paid if the
Company achieves some or all of those goals. In setting the annual
cash bonus opportunity, the Compensation Committee will abide by the philosophy
that cash bonuses might be substantial if individual and corporate performance
reaches predetermined levels. In recent years, material cash bonuses
have not been paid, because corporate performance has not warranted
it.
Overall,
our cash compensation practices reflect our long held philosophy that annual
cash compensation shall consist of (1) base pay at the level to attract and
retain the caliber of talent we need and (2) bonus compensation which is
entirely performance based.
Our
Compensation Committee takes into account several factors in determining the
level of long term incentive opportunity to grant to our executive
officers. In 2007, the Compensation Committee took the following
factors into account
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Individual
executive performance;
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Equity
compensation grants which have been granted
previously;
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The
effect of equity compensation grants on fully diluted earnings per
share;
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Each
executive officer’s portion of the total number of options being granted
to employees in fiscal 2007; and
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The
level of grants necessary to keep our executive officers focused and
motivated in the coming year.
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In
considering the level of option grants required to keep our executive officers
focused and motivated, the Compensation Committee periodically makes reference
to equity compensation practices at similar sized public
companies. However, no effort is made to make grants at a particular
percentile of the market range.
In
February 2008, the Compensation Committee retained Denver Management Advisors,
Inc. to provide market data and recommendations to the Compensation Committee
regarding compensation for executive officer positions.
Policy
for Allocating Between Long Term and Current Compensation
Our
policy for allocating between long term and current compensation for our
executive officers is as follows:
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We
expect that in the long run the bulk of total compensation paid to
executive officers will come from stock options and other equity based
long term incentives. Executive officers would only enjoy
rewards to the extent they create commensurate value for stockholders.
This would be in keeping with our philosophy of utilizing executive
compensation to create sustained increases in value for our
stockholders.
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We
recognize that to create sustainable increases in share value, increases
in growth and profitability are necessary. Accordingly, it is
our intention to provide competitive cash bonus
opportunities. However, annual bonuses will only be paid to the
extent short term objectives are achieved or
exceeded.
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Finally,
we recognize that in order to attract and retain the kind of talent
necessary to build share value, we must pay competitive base salary and
benefits.
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Benchmarking
of Compensation
Our
compensation philosophy does not include an effort to pay executive officers at
a particular percentile of the market range. Accordingly, we did not
select a group of peer companies with an eye toward using their executive
officer pay as a benchmark against which to set our compensation. As
stated above, we take several factors into account in determining base pay,
short term incentive opportunity, and long term incentive opportunity, including
individual and corporate performance, changes in position responsibility, and
internal equity.
Nevertheless,
we understand that there are several companies which are competitors for
executive officer talent, and we view it as useful to examine their pay
practices from time to time. In the course of determining cash
compensation for our executive officers in 2007, we looked at publicly traded
gaming companies. For purposes of determining long term
incentive grants, we looked at practices in a wide variety of companies, both in
and outside of the industry. For the limited purpose of the analysis
set forth below, the compensation paid to the executive officers of these
positions is referred to as “market”.
Based on
our review of the data, it appeared that all of our executive officers were at,
or slightly below, the midpoint of the market range, when base salary, bonus
opportunity, and long term incentives were taken into account. The one exception
was our CEO, whose base salary and prior year equity compensation grants put him
above the midpoint of the market range. Since our CEO is a proven
industry veteran whose skill and reputation are essential for the Company to
meet its near term goals, the Compensation Committee believes that his retention
is important, and his pay package is justified.
Long
Term Incentive Opportunity – Basis for Reward and Downside Risk
To date,
the Compensation Committee has awarded stock options and restricted stock under
our 2004 Stock Option Plan and the 2005 Equity Incentive Plan. The
Compensation Committee may consider using other equity based incentives in the
future. Options bear a relationship to the achievement of our long
term goals in that they increase in value as our stock increases in
value.
Our
executive officers are exposed to downside risk through the shares of the
Company they own outright and/or through the options they
hold. Declines in the stock price will result in the shares they hold
outright becoming less valuable, and the options becoming less valuable, or
worthless.
The
Compensation Committee carefully evaluates the cost of options and restricted
stock it grants to its executive officers, in terms of their impact on fully
diluted earnings per share. The Compensation Committee will continue
to evaluate the cost of options and other forms of equity compensation against
the benefit those vehicles are likely to yield in building sustainable growth in
stockholder value.
Equity
Grants and Market Timing
We do not
grant options in coordination with the release of material, non-public
information, and we do not intend to adopt such a practice in the
future. During 2007, annual awards of stock options to our
executive officers and key employees were usually made at regularly
scheduled Compensation Committee meetings. Exceptions would
include grants made to new hires, grants made as a result of promotions, and
other extraordinary circumstances
We have
properly accounted for all of our option grants. When we award
options and set the exercise price, the exercise price is based on the fair
market value of our stock on the grant date. Our
2005 Equity Incentive Plan defines “fair market value” as the closing
price of publicly traded shares of Stock on the principal securities exchange on
which shares of stock are listed, or on the NASDAQ Stock Market (if shares are
regularly quoted on the NASDAQ Stock Market), or, if such bid and asked prices
shall not be available, as reported by any nationally recognized quotation
service selected by the Company or as determined by the Compensation Committee
in a manner consistent with the provisions of the Code.
Specific
Forms of Compensation and the Role of Committee Discretion
In the
past, the Compensation Committee has retained the discretion to review executive
officer base pay, and to make increases based on executive performance and
market norms. The Compensation Committee has also recommended increases when
executives have been promoted, or their responsibilities have otherwise been
expanded. In addition, the Compensation Committee has retained
the discretion to make long term incentive grants based on several factors
detailed in this Compensation Discussion and Analysis. The
Compensation Committee intends to retain the discretion to make decisions about
executive officer base compensation and certain levels of stock option grants
and restricted stock grants without predetermined performance goals or
metrics.
The
Compensation Committee retains its right to make future grants of options,
restricted stock, or other equity compensation based on Company and individual
performance. At this time, it has not been determined whether it
would exercise discretion to increase or reduce the size of an award or payout
if the performance goals are met, or pay all or any portion of an award or
payout despite the performance goals not being met.
In the
past, the Compensation Committee has retained the discretion to pay individual
bonuses to the Chief Executive Officer and Named Executive Officers, based on
corporate and individual performance. The determination whether a
bonus was paid, as well as the amount, was left to the discretion of the
Compensation Committee. The Chief Operating Officer was paid $12,000
for his 2006 performance, and the Chief Compliance Officer was paid $10,000 for
her 2006 individual performance. No bonuses were paid to the Chief
Executive Officer or to Named Executive Officers with respect to the 2007 fiscal
year.
In the
future, the Compensation Committee intends to set predetermined goals, as well
as predetermined bonus amounts for achieving such goals. These goals
will be set as early as possible in the fiscal year for which the bonus is to be
paid.
How
Individual Forms of Compensation are Structured and Implemented to Reflect the
Named Executive Officers’ Individual Performance and Contribution.
We are
engaged in a concerted strategic effort to increase revenue, profit, and
operating efficiency. The CEO and the Named Executive Officers work
as a team to accomplish these goals. Their base pay, annual bonus
opportunity, and respective long term incentive opportunity reflect their
individual contribution to the Company and market practices.
The CFO
received an option grant for 40,000 shares in May 2007 which vest over a two
year period. The Chief Compliance Officer received an option grant
for 10,000 shares in January 2007, which vest over three years. Both
grants were made pursuant to the Company’s 2005 Equity Incentive
Plan. The amount of each individual grant reflects the Compensation
Committee’s assessment of each individual’s contribution. As of the
end of fiscal 2007, none of the January or May 2007 option grants were in the
money.
Policies
and Decisions Regarding Adjustment or Recovery of Awards or Payments if Relevant
Performance Measures are Restated or Adjusted
We have
not previously needed to adjust or recover awards or payments because relevant
performance measures were restated or adjusted. If this occurred, we
expect that we would take steps legally permissible to adjust or recover awards
or payments in the event relevant performance measures upon which they were
based were restated or otherwise adjusted in a manner that would reduce the size
of an award or payment.
Factors
Considered in Decisions to Increase or Decrease Compensation
Materially
During
the tenure of the current Compensation Committee, the Company has not previously
materially increased or decreased compensation. We expect that the
primary factor we would consider in such a case is a clear, sustained market
trend.
Impact
that Amounts Received or Realizable From Previously Earned Compensation Have on
Other Compensation
We
maintain no compensation plans programs where gains from prior compensation
would directly influence amounts currently earned. The only factor
where gains from prior awards are considered is where the Compensation Committee
determines the appropriate size of long term incentive grants.
The
Basis for a Change of Control Triggering Payment
We have
entered into an employment agreement with our CEO which provides that if the
Company terminates his employment without Cause or if he resigns with Good
Reason (as those terms are defined in his employment contract) then the Company
is obligated to continue to pay his compensation for the remainder of its term,
and the options and restricted shares granted at the commencement of his
employment contract would immediately vest. The employment agreement
also provides that if the CEO terminates his contract within one year of a
change of control, the cash compensation which we are obligated to pay him, as
described above, will be paid in a lump sum. The CEO’s contract
provides that if it is not to be renewed at the end of its term, the Company
must provide the CEO with 180 days notice. As of the date of this
Compensation Discussion and Analysis, the Company and the CEO have waived their
rights to the 180 day notice. The employment
agreement, and the change of control provisions discussed herein, are
therefore set to expire on May 23, 2008. The terms of the contract
renewal are currently under review.
Impact
of Accounting and Tax Treatment on Various Forms of Compensation
We take
the impact of accounting and tax treatment on each particular form of
compensation into account. Our incentive payments are designed so
that they are deductible under Section 162(m) of the Internal Revenue
Code. We closely monitor the accounting treatment of our equity
compensation plans, and in making future grants, we expect to take the
accounting treatment into account.
Ownership
Requirements and Policies Regarding Hedging Risk in Company’s Equity
Securities
Since a
significant ownership stake in the Company by its directors and executive
officers leads to a stronger alignment of interests with stockholders, the Board
has encouraged stock ownership by non-employee directors and executive officers.
However, there are currently no share ownership guidelines in
place.
Our
executive officers are not allowed to make a short sale of stock, which we
define as any transaction whereby one may benefit from a decline in our stock
price.
The
Role of Executive Officers in Determining Compensation
In early
2007, our CEO supplied the Compensation Committee with his thoughts on what the
personal goals of the Named Executive Officers should be, for purposes of the
2007 annual incentive plan. The CEO also apprised the Compensation
Committee with his assessment of the performance of the Named Executive Officers
in 2006, and the Committee took this information into account, among other
information, in setting their base pay for 2007.
At the
close of 2007, the CEO supplied the Compensation Committee with similar input,
regarding 2007 performance of the Named Executive Officers, as well the CEO’s
thoughts on individual objectives for the 2008 annual incentive
plan.
Other
than the input supplied above, neither the CEO nor any Named Executive Officer
played any role in determining executive officer compensation.
Summary
Compensation Table
The
following table sets forth all information concerning the compensation received,
for the fiscal year ended December 31, 2007, for services rendered to us by
David P. Hanlon, our chief executive officer, Ronald J. Radcliffe, our chief
financial officer, and each of our two other most highly compensated executive
officers.
SUMMARY
COMPENSATION TABLE
Name
and Principal Position
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Salary
($)
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Bonus
($)
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Stock
Awards ($) (1)
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Option
Awards ($) (1)
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All
Other Compen-
sation
($) (2)
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Total
($)
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David
P. Hanlon
Chief
Executive Officer
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2007
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500,000
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-
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109,411
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389,762
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9,000
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1,008,173
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2006
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500,000
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-
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529,633
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1,377,829
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8,800
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2,416,262
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Ronald
J. Radcliffe
Chief
Financial Officer
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2007
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295,596
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-
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-
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324,766
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9,000
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629,362
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2006
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275,000
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-
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-
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352,269
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8,800
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636,069
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Thomas
W. Aro
Chief
Operating Officer
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2007
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195,000
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12,000
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-
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|
49,806
|
|
|
9,000
|
|
265,806
|
|
|
2006
|
|
195,000
|
|
-
|
|
-
|
|
109,840
|
|
|
7,800
|
|
312,640
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hilda
Manuel
Sr.
VP for Native American Affairs
|
2007
|
|
180,000
|
|
10,000
|
|
-
|
|
146,272
|
|
|
5,400
|
|
341,672
|
|
|
2006
|
|
160,192
|
|
-
|
|
-
|
|
159,724
|
|
|
2,000
|
|
321,916
|
|
(1)
|
These
amounts represent the dollar amount recognized for financial reporting
purposes for the years ended December 31, 2007 and December 31, 2006, as
applicable, for the value of prior year and current year grants of
restricted stock and stock options allocable to that year and are computed
in accordance with SFAS No. 123R. Please see Notes B, I and J
to our consolidated financial statements contained in our Form 10-K for
the fiscal year ended December 31, 2007 for more information on these
issues.
|
|
(2)
|
These
amounts reflect the Company matching contributions associated with amounts
contributed by the individuals to our 401(k) benefit plan. See
Note M to our consolidated financial statements contained in our Form 10-K
for the fiscal year ended December 31, 2007 for more information on this
plan.
|
Grant
of Plan-Based Awards
The
following table sets forth information concerning grants of plan-based awards
made by us during 2007, to each of the named executive officers:
|
|
|
All
Other Option Awards:
Number
of Securities Underlying Options
|
Exercise
or Base Price of Option Awards ($)
|
Grant
Date Fair Value of Stock and Option Awards ($) (1)
|
|
David
P. Hanlon
|
-
|
-
|
-
|
|
-
|
|
|
|
|
|
|
|
|
Thomas
W. Aro
|
-
|
-
|
-
|
|
-
|
|
|
|
|
|
|
|
|
Ronald
J. Radcliffe
|
5/24/07
|
40,000
|
7.40
|
|
253,200
|
|
|
|
|
|
|
|
|
Hilda
Manuel
|
1/30/07
|
10,000
|
8.74
|
|
75,360
|
|
(1)
|
These
amounts reflect the aggregate grant date fair value of options granted in
the year ended December 31, 2007 under our 2005 Equity Incentive Plan
computed in accordance with SFAS No. 123R. Please see Notes B
and J to our consolidated financial statements contained in our Form 10-K
for the fiscal year ended December 31, 2007 for more
information.
|
Narrative
Disclosure to Summary Compensation Table and Grants of Plan-Based Awards
Table
Employment
Agreements
On May
23, 2005, we entered into an employment agreement with David P. Hanlon which
sets forth terms and provisions governing Mr. Hanlon’s employment as our Chief
Executive Officer and President. This agreement provides for an
initial term of three years at an annual base salary of $500,000. In
addition, Mr. Hanlon is entitled to participate in any annual bonus plan or
equity based incentive programs maintained by us for our senior
executives. In connection with his employment, Mr. Hanlon received an
option grant of a 10-year non-qualified stock option to purchase 1,044,092
shares of our Common Stock pursuant to the 2005 Equity Incentive Plan, subject
to stockholder approval, at an exercise price per share of $3.99, vesting 33% 90
days following the grant date, 33% on the first anniversary of the grant and 34%
on the second anniversary of the grant, which approval was received on August
17, 2005. We also granted Mr. Hanlon 261,023 restricted shares,
pursuant to our 2005 Equity Incentive Plan, vesting 33% on the grant date, 33%
on the first anniversary of grant, and 34% on the second anniversary of the
grant. We agreed to provide certain benefits to Mr. Hanlon, including
maintaining a term life insurance policy on the life of Mr. Hanlon in the amount
of $2,000,000 and reimbursement for relocation expenses and expenses for
temporary housing.
On May
23, 2005, we entered into an employment agreement with Ronald J. Radcliffe which
sets forth terms and provisions governing Mr. Radcliffe’s employment as our
Chief Financial Officer. This agreement provides for an initial term
of three years at an annual base salary of $275,000. In addition, Mr.
Radcliffe is entitled to participate in any annual bonus plan or equity based
incentive programs maintained by us for our senior executives. In
connection with his employment, Mr. Radcliffe received an option grant of a
10-year non-qualified stock option to purchase 150,000 shares of our Common
Stock pursuant to our 2005 Equity Incentive Plan, subject to stockholder
approval, at an exercise price per share of $3.99, vesting 33% 90 days following
the grant date, 33% on the first anniversary of the grant and 34% on the second
anniversary of the grant, which approval was obtained on August 17,
2005.
Outstanding
Equity Awards at Fiscal Year-End
The
following table sets forth information concerning the outstanding equity awards
of each of the named executive officers as of December 31, 2007:
|
|
|
|
|
|
Number
of Securities Underlying Unexercised Options: Exercisable
|
Number
of Securities Underlying Unexercised
Options:
Unexercisable
|
Option
Exercise Price ($)
|
|
|
David
P. Hanlon
|
|
7,500
|
|
-
|
|
7.00
|
|
8/15/13
(1)
|
|
|
|
5,000
|
|
-
|
|
11.97
|
|
3/24/14
(2)
|
|
|
|
10,000
|
|
-
|
|
8.51
|
|
1/7/10
(3)
|
|
|
|
1,044,092
|
|
-
|
|
3.99
|
|
5/23/15
(4)
|
|
|
|
|
|
|
|
|
|
|
|
Ronald
J. Radcliffe
|
|
120,000
|
|
-
|
|
3.99
|
|
5/23/15
(5)
|
|
|
|
40,000
|
|
20,000
|
|
5.53
|
|
8/10/16
(6)
|
|
|
|
13,333
|
|
26,667
|
|
7.40
|
|
5/24/17
(14)
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
W. Aro
|
|
5,500
|
|
-
|
|
4.40
|
|
6/30/09
(7)
|
|
|
|
20,000
|
|
-
|
|
2.12
|
|
1/9/11
(8)
|
|
|
|
50,000
|
|
-
|
|
14.25
|
|
5/20/14
(9)
|
|
|
|
20,000
|
|
10,000
|
|
6.75
|
|
12/16/15
(10)
|
|
|
|
|
|
|
|
|
|
|
|
Hilda
Manuel
|
|
30,000
|
|
|
|
8.26
|
|
3/18/15
(11)
|
|
|
|
5,667
|
|
2,833
|
|
6.75
|
|
12/16/15
(12)
|
|
|
|
16,667
|
|
16,667
|
|
5.53
|
|
8/10/16
(13)
|
|
|
|
0
|
|
10,000
|
|
8.74
|
|
1/30/17
(15)
|
Unless
otherwise noted, option grants have a term of ten years. Grants to
Mr. Hanlon prior to May 23, 2005 were made to him in his capacity as a
Director.
|
(1)
|
Granted
and vested 8/5/03.
|
|
(2)
|
Granted
and vested 3/24/04.
|
|
(3)
|
Granted
and vested 1/7/05 – five year term.
|
|
(4)
|
Grant
date 5/23/05 effective upon stockholder approval received on 8/17/05;
vesting 33% 90 days after grant, 33% one year after grant and 34% two
years after grant.
|
|
(5)
|
Total
options granted 5/23/05 – 150,000 effective upon stockholder approval
received on 8/17/05; vesting 33% 90 days after grant, 33% one year after
grant and 34% two years after grant. Options for 30,000 shares
exercised on December 20, 2006.
|
|
(6)
|
Grant
date 8/10/06; vesting 33.3% 90 days after grant, 33.3% one year after
grant and 33.3% two years after grant.
|
|
(7)
|
Grant
date 6/30/99; vesting 33.3% one year after grant, 33.3% two years after
grant and 33.3% three years after grant.
|
|
(8)
|
Grant
date 1/9/03; vesting 33.3% one year after grant, 33.3% two years after
grant and 33.3% three years after grant - eight year
term.
|
|
(9)
|
Grant
date 5/20/04; vesting 50% on date of grant and 50% one year after
grant.
|
|
(10)
|
Grant
date 12/16/05; vesting 33.3% one year after grant, 33.3% two years after
grant and 33.3% three years after grant.
|
|
(11)
|
Grant
date 3/18/05; vesting one year.
|
|
(12)
|
Grant
date 12/16/05; vesting 33.3% one year after grant, 33.3% two years after
grant and 33.3% three years after grant.
|
|
(13)
|
Grant
date 8/10/06; vesting 33.3% 90 days after grant, 33.3% one year after
grant and 33.3% two years after grant.
|
|
(14)
|
Grant
date 5/24/07; vesting 33.3% on date of grant, 33.3% one year after grant
and 33.3% two years after grant.
|
|
(15)
|
Grant
date 1/30/07; vesting 33.3% one year after grant, 33.3% two years after
grant and 33.3% three years after
grant.
|
Option
Exercises and Stock Vested
The
following table sets forth information concerning the exercising of stock
options of each of the named executive officers in December 31,
2007:
|
|
|
|
|
|
|
Number
of Shares Acquired on Exercise
|
Value
Realized on Exercise ($)
|
Number
of Shares Acquired on Vesting
|
Value
Realized on Vesting ($)
|
|
David
P. Hanlon
|
|
-
|
|
-
|
88,747
|
662,930
|
|
|
|
|
|
|
|
|
|
Ronald
J. Radcliffe
|
|
-
|
|
-
|
-
|
-
|
|
|
|
|
|
|
|
|
|
Thomas
W. Aro
|
|
18,000
|
|
129,600
|
-
|
-
|
|
|
|
|
|
|
|
|
|
Hilda
Manuel
|
|
16,666
|
|
43,998
|
-
|
-
|
Potential
Payments upon Termination or Change-in-Control
The
employment agreements for each of David P. Hanlon and Ronald J. Radcliffe
provide for potential payments upon termination, or, in the case of Mr. Hanlon,
a change-in-control. In the event that we terminate either Mr. Hanlon
or Mr. Radcliffe’s employment with Cause or Mr. Hanlon or Mr. Radcliffe resigns
without Good Reason, our obligations are limited generally to paying such
executive’s base salary through the termination date. In the event
that we terminate Mr. Hanlon’s employment without Cause or he terminates his
employment without Good Reason, the vesting of stock options and restricted
stock shall be treated in accordance with the terms of the relevant plan,
provided, however, that if Mr. Hanlon terminates his employment without Good
Reason and the basis for such determination is based upon a good faith
conclusion by Mr. Hanlon and the Board that the direction that the Company is
going is inconsistent with the direction that Mr. Hanlon and the Board
anticipated as of the commencement of Mr. Hanlon’s employment, then the stock
options granted pursuant to Mr. Hanlon’s employment agreement may be exercised
for a period of one year following such termination.
In the
event that we terminate Mr. Hanlon’s employment without Cause or Mr. Hanlon
resigns with Good Reason, we are generally obligated to continue to pay Mr.
Hanlon’s compensation for the remainder of the term of Mr. Hanlon’s employment
agreement and accelerate the vesting of the options and restricted shares
granted at the commencement of this agreement. If Mr. Hanlon
terminates his employment within one year following a Change of Control, we
shall pay such cash compensation in a lump sum.
In the
event that we terminate Mr. Radcliffe’s employment without Cause or Mr.
Radcliffe resigns with Good Reason, we are generally obligated to continue to
pay Mr. Radcliffe’s compensation for a period of six months following such
termination.
For
purposes of their employment agreements, “Cause” is defined as the executive (i)
pleading “guilty” or “no contest” to or being convicted of an act which is
defined as a felony under federal or state law or as a crime under federal or
state law which involves such executive’s fraud or dishonesty, (ii) in carrying
out his duties, engaging in conduct that constitutes willful neglect or willful
misconduct; provided such plea, conviction, neglect or misconduct results in
material economic harm to the Company, (iii) such executive’s failure to obtain
or maintain required licenses in the jurisdiction where the Company currently
operates or has plans to operate, in either case as of the commencement of such
executive’s employment or (iv) such executive’s material breach of his
employment agreement.
For
purposes of their employment agreements, “Good Reason” is defined as the
occurrence of any of the following without such executive’s prior written
consent: (i) the failure to appoint or continue such executive in
their current position with the Company; (ii) a material diminution in such
executive’s duties, or the assignment to such executive of duties materially
inconsistent with his duties, positions, authority, responsibilities and
reporting requirements, or the assignment of duties which materially impair such
executive’s ability to function in his current position with the Company; (iii)
a reduction in or a material delay in payment of such executive’s total cash
compensation and benefits from those required to be provided in accordance with
the provisions of such executive’s employment agreement; or (iv) the failure of
the Company to obtain the assumption in writing of its obligation to perform
such executive’s employment agreement by any successor to all or substantially
all of the assets of the Company not later than the effective date of such
transaction. The definition of “Good Reason” in Mr. Hanlon’s
employment agreement also includes (i) the failure of the Board or a nominating
committee thereof to nominate Mr. Hanlon for election to the Board of Directors;
(ii) a change in the reporting structure so that Mr. Hanlon no longer reports
directly to the Board or a committee thereof; (iii) the Company, the Board or
any person controlling the Company requiring Mr. Hanlon to relocate his
principal place of employment to a location other than New York State or Nevada,
other than on travel reasonably required to carry out Mr. Hanlon’s obligations
under his employment agreement; (iv) any termination by Mr. Hanlon of his
employment for any reason other than death or disability within one year of a
Change in Control of the Company; or (v) a material breach by the Company of any
of the provisions of Mr. Hanlon’s employment agreement.
For the
purposes of Mr. Hanlon’s employment agreement, the term “Change of Control”
shall be deemed to have occurred as of the first day that any one or more of the
following conditions is satisfied: (i) any person is or becomes the “beneficial
owner” (as that term is defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding securities; or (ii) any
of the following occur: (A) any merger or consolidation
of the
Company, other than a merger or consolidation in which the voting securities of
the Company immediately prior to the merger or consolidation continue to
represent (either by remaining outstanding or being converted into securities of
the surviving entity) 20% or more of the combined voting power of the Company or
surviving entity immediately after the merger or consolidation with another
entity; (B) any sale, exchange, lease, mortgage, pledge, transfer, or other
disposition (in a single transaction or a series of related transactions) of all
or substantially all of the assets or earning power of the Company on a
consolidated basis; (C) any complete liquidation or dissolution of the Company;
(D) any reorganization, reverse stock split or recapitalization of the Company
that would result in a Change of Control as otherwise defined herein; or (E) any
transaction or series of related transactions having, directly or indirectly,
the same effect as any of the foregoing.
The
employment agreements of each of Mr. Hanlon and Mr. Radcliffe contain
non-competition and non-solicitation provisions for the period that the
executive is employed by the Company, plus the greater of (i) one year following
the voluntary termination of such executive’s employment without Good Reason,
(ii) one year following termination of the such executive by the Company for
Cause, or (iii) the balance of the period that the executive is continuing to
receive his base salary.
The
following table summarizes the contingent compensation amounts provided for in
the employment agreements. The table provides the estimated payments
payable to each executive upon (a) the Company’s termination of Mr. Hanlon or
Mr. Radcliffe without Cause or the resignation of Mr. Hanlon or Mr. Radcliffe
with Good Reason, and (b) in the case of Mr. Hanlon, termination, in certain
circumstances, following a Change of Control. These numbers are
subject to change as specified in the employment agreements.
|
|
Termination
Without Cause or
Resignation
With Good Reason
|
Termination
of Employment Following a Change of Control ($)
|
|
|
Acceleration
of Options and Restricted Stock ($)
|
|
|
|
|
|
|
|
|
|
|
David
P. Hanlon
|
198,000
|
-
|
2,900
|
200,900
|
200,900
|
|
|
|
|
|
|
|
|
Ronald
J. Radcliffe
|
155,000
|
121,707
|
5,970
|
282,677
|
--
|
Director
Compensation
Directors
who are also our officers are not separately compensated for their service as
directors. Our non-employee directors received the following
aggregate amounts of compensation for 2007.
|
|
|
|
|
|
|
|
|
John
Sharpe
|
|
|
99,000
|
|
|
|
75,360
|
(1)(2)
|
|
|
919,743
|
|
|
|
|
|
|
|
|
|
633,000
|
(1)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
112,383
|
(1)(4)
|
|
|
|
|
|
Joseph
E. Bernstein (7)
|
|
|
28,617
|
|
|
|
75,360
|
(1)(2)
|
|
|
103,977
|
|
|
Ralph
J. Bernstein
|
|
|
37,500
|
|
|
|
75,360
|
(1)(2)
|
|
|
112,860
|
|
|
Frank
Catania
|
|
|
54,000
|
|
|
|
75,360
|
(1)(2)
|
|
|
129,360
|
|
|
Paul
A. deBary
|
|
|
86,250
|
|
|
|
75,360
|
(1)(2)
|
|
|
194,228
|
|
|
|
|
|
|
|
|
|
32,618
|
(1)(5)
|
|
|
|
|
|
Robert
H. Friedman
|
|
|
38,000
|
|
|
|
75,360
|
(1)(2)
|
|
|
113,360
|
|
|
Richard
L. Robbins (8)
|
|
|
11,728
|
|
|
|
58,037
|
(1)(6)
|
|
|
69,765
|
|
|
James
Simon (8)
|
|
|
10,228
|
|
|
|
58,037
|
(1)(6)
|
|
|
68,265
|
|
|
(1)
|
Grant
date aggregate fair value of options granted in the year ended December
31, 2007 under our 2005 Equity Incentive Plan computed in accordance with
SFAS No. 123R. Please see Notes B and J to our consolidated
financial statements contained in our Form 10-K for the fiscal year ended
December 31, 2007 for more information.
|
|
(2)
|
Grant
date 1/30/07; securities underlying options – 10,000 with 10 year
term.
|
|
(3)
|
Grant
date 5/24/07; securities underlying options – 100,000 with 10 year
term.
|
|
(4)
|
Grant
date 8/10/07; securities underlying options – 25,000 with 10 year
term.
|
|
(5)
|
Grant
date 12/28/07; securities underlying options – 15,000 with 9 year
term.
|
|
(6)
|
Grant
date 8/21/07; securities underlying options – 15,000 with 10 year
term.
|
|
(7)
|
Joseph
E. Bernstein resigned from his position as a member of the Board of
Directors on June 22, 2007.
|
|
(8)
|
Richard
L. Robbins and James Simon were appointed as members of the Board of
Directors on August 21, 2007
|
Cash
Compensation
During
2007, each non-employee member of the Company’s Board of Directors received
$20,000 per year and $1,000 per meeting attended in person and $500 per meeting
attended telephonically. Directors that also serve on committees of
the Board of Directors receive an additional $1,000 per committee meeting
attended in person and $500 per meeting attended telephonically. The
chairman of the audit committee receives an additional annual payment of
$25,000.
Stock
Compensation
Each
non-employee member of the Company’s Board of Directors receives an annual grant
of options to purchase 10,000 shares of the Company’s Common Stock at the Common
Stock’s then current fair market value, and since August 2003 each newly elected
or appointed non-employee director received a one time grant of an option to
purchase 15,000 shares of the Company’s Common Stock at the Common Stock’s then
current fair market value. All stock options granted to the members
of the Company’s Board of Directors vest immediately. The chairman of
the audit committee receives an additional annual grant of an option to purchase
15,000 shares of the Company’s Common Stock.
Chairman
Compensation
On May
23, 2005, the Company’s Board of Directors ratified the compensation committee’s
approval of compensation of $50,000 per year for the position of non-executive
Chairman of the Board and a grant of an option to purchase 50,000 shares of the
Company’s Common Stock vesting immediately with a term of 10 years at the
initiation of service for any new non-executive Chairman of the
Board. John Sharpe, who became the Company’s Chairman of the Board on
such date, abstained from all votes of the Board of Directors related to the
establishment of this compensation.
Compensation
Committee Interlocks
There
were no transactions between any member of the Compensation Committee and the
Company during the fiscal year ended December 31, 2007. No member of
the Compensation Committee was an officer or employee of the Company or any
subsidiary of the Company during fiscal 2007.
Compensation
Committee
The
Compensation Committee of the Company has reviewed and discussed the
Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K
with management and, based on such review and discussions, the Compensation
Committee recommended to the Board that the Compensation Discussion and Analysis
be included in this Annual Report on Form 10-K/A.
Ralph J.
Bernstein, Chairman
Paul A.
deBary
Richard
Robbins
James
Simon
PART
IV
|
Item 15
.
|
Exhibits,
Financial Statement Schedules.
|
Financial
Statements
The
financial statements and financial statement schedules were included in our Form
10-K filed on March 17, 2008.
Exhibits
|
3.1
|
Certificate
of Incorporation, dated March 19, 1993. (4)
|
|
|
|
|
3.2
|
Certificate
of Amendment of Certificate of Incorporation, dated August 15, 1993.
(4)
|
|
|
|
|
3.3
|
Certificate
of Amendment of Certificate of Incorporation, dated December 18, 1996.
(4)
|
|
|
|
|
3.4
|
Certificate
of Amendment of Certificate of Incorporation, dated September 22, 1999.
(4)
|
|
|
|
|
3.5
|
Certificate
of Amendment of the Certificate of Incorporation, dated June 13, 2001.
(4)
|
|
|
|
|
3.6
|
Certificate
of Amendment to the Certificate of Incorporation, dated May 15, 2003.
(4)
|
|
|
|
|
3.7
|
Certificate
of Amendment to the Certificate of Incorporation, January 12, 2004.
(4)
|
|
|
|
|
3.8
|
Second
Amended and Restated By-Laws, as of Feb. 12, 2002. (4)
|
|
|
|
|
3.9
|
Amendment
No. 1 to the Second Amended and Restated By-Laws, dated November 11, 2003.
(4)
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3.10
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Amendment
No. 2 to Second Amended and Restated By-Laws, dated August 10,
2007. (16)
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3.11
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Amendment
No. 3 to Second Amended and Restated By-Laws, dated February 25,
2008. (18)
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4.1
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Form
of Common Stock Certificate. (2)
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4.2
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Certificate
of Designations, Preferences and Rights of Series B Preferred Stock dated
July 31, 1996. (4)
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4.3
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Certificate
of Designation setting forth the Preferences, Rights and Limitations of
Series B Preferred Stock and Series C Preferred Stock, dated May 29, 1998.
(4)
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4.4
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Certificate
of Amendment to the Certificate of Designation setting forth the
Preferences, Rights and Limitations of Series B Preferred Stock and Series
C Preferred Stock, dated June 13, 2001. (4)
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4.5
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Certificate
of Designations setting forth the Preferences, Rights and Limitations of
Series D Preferred Stock, dated February 7, 2000. (10)
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4.6
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Certificate
of the Designations, Powers, Preferences and Rights of the Series E
Preferred Stock, dated December 10, 2002. (4)
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4.7
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Certificate
of Amendment of Certificate of the Designations, Powers, Preferences and
Other Rights and Qualifications of the Series E Preferred Stock, dated
January 12, 2004. (4)
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4.8
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Indenture
dated as of July 26, 2004 among Empire Resorts, Inc., The Bank of New York
and the Guarantors named therein. (8)
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10.1
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1998
Stock Option Plan. (3)
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10.2
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2004
Stock Option Plan. (5)
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10.3
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2005
Equity Incentive Plan. (12)
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10.4
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Declaration
of Trust of the Catskill Litigation Trust, dated as of January 12, 2004,
made by Catskill Development, L.L.C., Mohawk Management, LLC, Monticello
Raceway Development Company, LLC, Empire Resorts, Inc., the trustees and
Christiana Bank & Trust Company. (10)
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10.5
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Line
of credit dated January 12, 2004 between Empire Resorts, Inc and Catskill
Litigation Trust. (8)
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10.6
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Promissory
Note issued by Catskill Litigation Trust on January 12, 2004 to Empire
Resorts, Inc. for the Principal Sum of $10,000,000. (8)
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10.7
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Five
Year Warrant issued to Jefferies & Company, Inc., dated January 30,
2004, to purchase 250,000 shares of Common Stock at an exercise price of
$7.50 per share. (4)
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10.8
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Registration
Rights Agreement, dated as of January 30, 2004, by and among Empire
Resorts, Inc. and Jefferies & Company, Inc. (4)
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10.9
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Security
Agreement dated as of July 26, 2004 between Empire Resorts, Inc., The Bank
of New York and the Guarantors named therein. (6)
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10.10
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Pledge
Agreement dated as of July 26, 2004 Empire Resorts, Inc., The Bank of New
York and the Guarantors named therein. (6)
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10.11
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Registration
Rights Agreement dated as of July 26, 2004 Empire Resorts, Inc., the
Guarantors named therein and Jefferies & Company, Inc.
(6)
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10.12
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Loan
Agreement, dated as of January 11, 2005, by and among Empire Resorts,
Inc., Monticello Raceway Management, Inc., Alpha Monticello, Inc., Alpha
Casino Management Inc., Mohawk Management, LLC, Monticello Raceway
Development Company, LLC and Monticello Casino Management, LLC and Bank of
Scotland, as lender and as agent. (9)
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10.13
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Security
Agreement, dated as of January 11, 2005, by Empire Resorts, Inc.,
Monticello Raceway Management, Inc., Alpha Monticello, Inc., Alpha Casino
Management Inc., Mohawk Management, LLC, Monticello Raceway Development
Company, LLC and Monticello Casino Management, LLC, in favor of Bank of
Scotland. (9)
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10.14
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Pledge
Agreement, dated as of January 11, 2005, by Empire Resorts, Inc., Alpha
Monticello, Inc. and Alpha Casino Management Inc. in favor of Bank of
Scotland. (9)
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10.15
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Mortgage,
Security Agreement, Assignment of Leases and Rents, and Fixture Filing,
dated as of January 11, 2005, by Monticello Raceway Management, Inc., a
New York corporation to Bank of Scotland. (9)
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10.16
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Promissory
Note issued by Empire Resorts, Inc. on January 11, 2005 to Bank of
Scotland for the Principal Sum of $10,000,000. (9)
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10.17
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Intercreditor
Agreement, dated as of January 11, 2005, by and among Bank of Scotland,
The Bank of New York, Empire Resorts, Inc., Monticello Raceway Management,
Inc., Alpha Monticello, Inc., Alpha Casino Management Inc., Mohawk
Management, LLC, Monticello Raceway Development Company, LLC and
Monticello Casino Management, LLC. (9)
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10.18
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Employment
Agreement dated as of May 23, 2005 between Empire Resorts, Inc. and David
P. Hanlon (filed without exhibits or schedules, all of which are available
upon request, without cost). (11)
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10.19
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Employment
Agreement dated as of May 23, 2005 between Empire Resorts, Inc. and Ronald
J. Radcliffe. (11)
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10.20
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Restated
Amendment No. 2 to Loan Agreement, dated January 11, 2005 by and among
Empire Resorts, Inc., the guarantors listed on the signature page thereto
and Bank of Scotland, dated as of November 30, 2005.
(13)
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10.21
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Amendment
No. 3 to Option Agreement, dated November 12, 2004, by and among Empire
Resorts, Inc. and Concord Associates Limited Partnership, dated as of
December 28, 2006. (14)
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10.22
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Amendment
No. 1 to Loan Agreement, dated January 11, 2005 by and among Empire
Resorts, Inc., the guarantors listed on the signature page thereto and
Bank of Scotland, dated as of June 13, 2005. (19)
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10.23
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Amendment
No. 3 to Loan Agreement, dated January 11, 2005 by and among Empire
Resorts, Inc., the guarantors listed on the signature page thereto and
Bank of Scotland, dated as of June 20, 2007. (15)
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10.24
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Agreement
to Form Limited Liability Company and Contribution Agreement, among
Concord Associates, L.P. and Empire Resorts, Inc., dated as of February 8,
2008. (17)
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10.25
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Amendment
No. 4 to Loan Agreement, dated January 11, 2005 by and among Empire
Resorts, Inc., the guarantors listed on the signature page thereto and
Bank of Scotland, dated as of March 14, 2008. (19)
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14.1
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Code
of Ethics. (4)
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21.1
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List
of Subsidiaries. (19)
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23.1
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Consent
of Independent Registered Accounting Firm. (19)
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31.1
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Section
302 Certification of Principal Executive Officer. (1)
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31.2
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Section
302 Certification of Principal Financial Officer. (1)
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32.1
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Section
906 Certification of Principal Executive Officer. (19)
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32.2
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Section
906 Certification of Principal Financial Officer.
(19)
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_____________
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(2)
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Incorporated
by reference to Empire Resorts, Inc.’s Registration Statement on Form SB-2
(File No. 33-64236), filed with the SEC on June 10, 1993 and as amended on
September 30, 1993, October 25, 1993, November 2, 1993 and November 4,
1993, which Registration Statement became effective November 5,
1993. Such Registration Statement was further amended by Post
Effective Amendment filed on August 20,
1999.
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(3)
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Incorporated
by reference to Empire Resorts, Inc.’s Definitive Proxy Statement on
Schedule 14A, filed with the SEC on August 25,
1999.
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(4)
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Incorporated
by reference to Empire Resorts, Inc.’s Form 10-KSB for the year ended
December 31, 2003.
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(5)
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Incorporated
by reference to Empire Resorts, Inc.’s Definitive Proxy Statement on
Schedule 14A, filed with the SEC on April 28,
2004.
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(6)
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Incorporated
by reference to Empire Resorts, Inc.’s Quarterly Report on Form 10-QSB for
the quarter ended June 30, 2004.
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(7)
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Incorporated
by reference to Empire Resorts, Inc.’s Quarterly Report on Form 10-QSB for
the quarter ended September 30,
2004.
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(8)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on November 18, 2004.
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(9)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on January 14, 2005.
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(10)
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Incorporated
by reference to Empire Resorts, Inc.’s Form 10-KSB for the year ended
December 31, 2004.
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(11)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on May 27, 2005.
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(12)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on August 19, 2005.
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(13)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K/A, filed
with the SEC on December 15, 2005.
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(14)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on January 3, 2007.
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(15)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with SEC on June 25, 2007.
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(16)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on August 16, 2007.
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(17)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on February 11, 2008.
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(18)
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Incorporated
by reference to Empire Resorts, Inc.’s Current Report on Form 8-K, filed
with the SEC on February 26, 2008.
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(19)
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Incorporated
by reference to Empire Resorts, Inc.’s Form 10-K, filed with the SEC on
March 17, 2008.
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SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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EMPIRES
RESORTS, INC.
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By:
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/s/
David
P. Hanlon
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Name:
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David
P. Hanlon
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Title:
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Chief
Executive Officer
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Date:
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April
28, 2008
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Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
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/s/
David
P. Hanlon
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Chief
Executive Officer, President and Director (Principal Executive
Officer)
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April
28, 2008
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David
P. Hanlon
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/s/
Ronald
J. Radcliffe
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Chief
Financial Officer (Principal Accounting and Financial
Officer)
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April
28, 2008
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Ronald
J. Radcliffe
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/s/
John
Sharpe
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Chairman
of the Board and Director
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April
28, 2008
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John
Sharpe
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/s/
Paul
A. deBary
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Director
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April
28, 2008
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Paul
A. deBary
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/s/
Ralph
J. Bernstein
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Director
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April
28, 2008
|
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Ralph
J. Bernstein
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/s/
Robert
H. Friedman
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Director
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April
28, 2008
|
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Robert
H. Friedman
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/s/
Frank
Catania
|
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Director
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April
28, 2008
|
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Frank
Catania
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/s/
Richard
Robbins
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Director
|
April
28, 2008
|
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Richard
Robbins
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/s/
James
Simon
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Director
|
April
28, 2008
|
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James
Simon
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