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EX-10.1 - EMPIRE RESORTS INC | ex101to8k05558_12242009.htm |
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): December 24,
2009
EMPIRE
RESORTS,
INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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001-12522
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13-3714474
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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c/o
Monticello Casino and Raceway, Route 17B,
P.O.
Box 5013, Monticello,
NY
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12701
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (845)
807-0001
N/A
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(Former
name or former address, if changed since last
report.)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02. Departure
of Directors or Certain Officer; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
On
December 31, 2009, the term of the employment agreement, dated June 1, 2009,
between Joseph E. Bernstein and Empire Resorts, Inc. (the “Company”) will expire
in accordance with its terms. As a result of the expiration of his
employment agreement, Mr. Bernstein will cease to serve as the Chief Executive
Officer of the Company.
On
December 24, 2009, the Board of Directors of the Company appointed Joseph A.
D’Amato, the Company’s current Chief Financial Officer, to replace Mr. Bernstein
as Chief Executive Officer of the Company effective January 1,
2010.
In
connection with Mr. D’Amato’s appointment as Chief Executive Officer, the
Company entered into an Amended and Restated Employment Agreement with Mr.
D’Amato, effective January 1, 2010 (the “Employment Agreement”). The
Employment Agreement provides for a term ending on January 1, 2013, unless Mr.
D’Amato’s employment is earlier terminated by either party in accordance with
the provisions thereof. Mr. D’Amato is to receive a base salary at
the rate of $350,000 per year for the term of the Employment Agreement and will
be entitled to participate in any annual bonus plan maintained by the Company
for its senior executives on such terms and conditions as may be determined from
time to time by the Compensation Committee of the Board of Directors of the
Company. Mr. D’Amato is also entitled under the Employment Agreement
to receive a payment of $10,000 for relocation expenses, provided that if Mr.
D’Amato terminates his employment under certain circumstances with 12 months he
will be required to reimburse the Company for such relocation
expenses. In the event that the Company terminates Mr. D’Amato’s
employment with Cause (as defined in the Employment Agreement) or Mr. D’Amato
resigns without Good Reason (as defined in the Employment Agreement), the
Company’s obligations are limited generally to paying Mr. D’Amato his base
salary through the termination date. In the event that the Company
terminates Mr. D’Amato’s employment without Cause or Mr. D’Amato resigns with
Good Reason, the Company is generally obligated to continue to pay Mr. D’Amato’s
compensation for the lesser of (i) 18 months or (ii) the remainder of the term
of the Employment Agreement. In the event that the Company terminates
Mr. D’Amato’s employment without Cause or Mr. D’Amato resigns with Good Reason
on or following a Change of Control (as defined in the Employment Agreement),
the Company is generally obligated to continue to pay Mr. D’Amato’s compensation
for the greater of (i) 24 months or (ii) the remainder of the term of the
Employment Agreement. In each case, the vesting of the options
granted to Mr. D’Amato pursuant to his prior employment agreement with the
Company would be accelerated, which options would remain exercisable through the
remainder of its original 5 year term. The foregoing summary of the
Employment Agreement does not purport to be complete and is subject to and
qualified in its entirety by reference to the actual text of such agreement, a
copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by
reference.
Mr.
D’Amato, age 61, previously served as Chief Financial Officer of the Company
since September 2009. Prior to his employment with the Company, Mr.
D’Amato most recently served as the Chief Executive Officer of Mount Airy Casino
Resort in Pennsylvania, from 2007 to 2009, and as Chief Financial Officer of the
Seneca Gaming Corporation in Western New York from 2002 to 2005 and as its Chief
Operating Officer from 2005 to 2007. During his earlier career in the gaming
industry, Mr. D’Amato served in various executive capacities with the Trump
Entertainment, Park Place and Golden Nugget organizations. From 1970-1975, Mr.
D’Amato was a Senior Auditor at Ernst & Young. Mr. D’Amato has participated
in raising over $2 billion in the public and bank finance markets, and has
extensive experience with Sarbanes Oxley and the filing requirements and
regulations of the Securities & Exchange Commission. He has been a CPA in
New Jersey and Pennsylvania and received an MS in Taxation from Widener
University in 1985, an MBA (Finance) from LaSalle University in 1978, and a BS
in Business Administration from LaSalle University in 1970.
Item
9.01. Financial Statements
and Exhibits.
(d) Exhibits
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Exhibit
No.
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Exhibits
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10.1
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Amended
and Restated Employment Agreement, dated as of December 24, 2009, by and
between Joseph A. D’Amato and Empire Resorts,
Inc.
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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.
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Dated:
December 24, 2009
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By:
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/s/
Joseph A. D’Amato
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Name:
Joseph A. D’Amato
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Title:
Chief Financial Officer
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Exhibits
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Exhibit
No.
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Exhibits
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10.1
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Amended
and Restated Employment Agreement, dated as of December 24, 2009, by and
between Joseph A. D’Amato and Empire Resorts,
Inc.
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