sec document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934
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Filed by a Party other than the Registrant / /
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/ / Preliminary Proxy Statement
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14a-6(e)(2))
/ / Definitive Proxy Statement
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/ / Soliciting Material pursuant to ss. 240.14a-12
EMPIRE RESORTS, INC.
--------------------
(Name of Registrant as Specified in Its Charter)
--------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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-2-
Empire Resorts, Inc.
c/o Monticello Raceway
Route 17B
P.O. Box 5013
Monticello, New York 12701
(845) 794-4100, ext. 478
April 27, 2004
Dear Stockholder:
We previously sent you proxy materials for the Annual Meeting of
Stockholders of Empire Resorts, Inc. to be held on May 12, 2004 including that
certain definitive proxy statement on Schedule 14A dated April 12, 2004 (the
"Proxy Statement").
The section of the Proxy Statement entitled "Ownership of Securities"
is hereby amended and restated to read in its entirety as follows:
"OWNERSHIP OF SECURITIES
The following table sets forth certain information regarding the
estimated beneficial ownership of the Company's voting securities following the
merger, based on data existing as of March 24, 2004, by all individuals expected
to be directors and executive officers following the consolidation; persons
expected to own 5% or more of any class of the Company's voting securities
following the consolidation; and all of the expected directors and executive
officers as a group. Unless otherwise indicated, the address of each
stockholder, director and executive officer listed below is c/o Empire Resorts,
Inc., Route 17B, P.O. Box 5013, Monticello, New York, 12701.
Series B Preferred Series E Preferred
Common Stock Beneficially Stock Beneficially Stock Beneficially
Owned(1) Owned(1) Owned(1)
---------------------------- ----------------------- -------------------------
Shares Percentage Shares Percentage Shares Percentage
--------- --------- ------ ---------- ------ ----------
Robert A. Berman 4,605,334(2) 17.59% -- -- -- --
Scott A. Kaniewski 1,000,610(3) 3.82% -- -- -- --
Watertone Holdings 4,565,010 17.63% -- -- -- --
Thomas W. Aro 47,700(4) * -- -- -- --
Paul A. deBary 187,684(5) * -- -- -- --
Morad Tahbaz 1,337,359(6) 5.16% -- -- -- --
David Matheson 35,000(7) * -- -- -- --
John Sharpe 17,000(8) * -- -- -- --
David P. Hanlon 15,000(9) * -- -- -- --
Arthur I. Sonnenblick 15,000(10) * -- -- -- --
Joseph E. Bernstein 2,423,253(11) 9.35% -- -- -- --
JB Trust 2,362,058(12) 9.12% -- -- -- --
Ralph J. Bernstein 2,324,753(13) 8.97% -- -- -- --
Americas Tower Partners 6,599,294 25.48% -- -- -- --
Maurice Dabbah 2,006,291(14) 7.75% -- -- -- --
Monticello Realty 5,732,261 22.13% -- -- -- --
Directors and executive 11,988,693 45.03% -- -- -- --
officers as a group (11
persons) (2)-(11), (13)
BP Group, Ltd. -- -- 44,258 100% -- --
8306 Tibet Butler Drive
Windemere, FL
The Bryanston Group, Inc. -- -- -- -- 1,551,213 89.6%
2424 Route 52
Hopewell Junction, NY
12533
Stanley Tollman -- -- -- -- 152,817 8.8%
The Bryanston Group, Inc.
2424 Route 52
Hopewell Junction, NY
12533
----------
* less than 1%
(1) A person is deemed to be the beneficial owner of voting securities that can
be acquired by such person within 60 days after the record date upon the
exercise of options and warrants and the conversion of convertible
securities. Each beneficial owner's percentage of ownership is determined
by assuming that all options, warrants or convertible securities held by
such person (but not those held by any other person) that are currently
exercisable or convertible (i.e., that are exercisable or convertible
within 60 days after the record date) have been exercised or converted.
(2) Includes 1,094,004 shares of common stock owned directly by Robert A.
Berman, options that are currently exercisable into 279,189 shares of
common stock and 3,232,141 shares of common stock held directly by
Watertone Holdings. Robert A. Berman directly holds a 46.305% limited
partnership interest in Watertone Holdings, representing an indirect
beneficial ownership interest in 2,113,828 shares of such 3,232,141 shares
of the Company's common stock held directly by Watertone Holdings. Through
BKB, LLC, 82% of which is owned by Robert A. Berman, Robert A. Berman
indirectly holds a general partnership interest of .0082% of Watertone
Holdings, representing an indirect beneficial ownership interest in an
additional 37,433 shares of such 3,232,141 shares of the Company's common
stock held directly by Watertone Holdings, and through Avon Road Partners,
LP, Robert A. Berman indirectly beneficially holds an addition 23.678%
limited partnership interest in Watertone Holdings, representing an
indirect beneficial ownership interest in an additional 1,080,880 of such
3,232,141 shares of the Company's common stock held directly by Watertone
Holdings. Avon Road Partners, LP is 88% owned by Robert A. Berman, 3% by
Debbie N. Berman and 9% by the Berman Family Trust whose beneficiaries are
Robert A. Berman's children. Debbie N. Berman, Robert A. Berman's wife, and
Philip B. Berman, Robert A. Berman's brother, are co-trustees of the Berman
Family Trust and have joint voting and dispositive power with respect to
its holdings. Robert A. Berman disclaims beneficial ownership of all shares
of common stock held by the Berman Family Trust.
(3) Includes 134,096 shares of common stock owned directly by Scott A.
Kaniewski, options that are currently exercisable into 295,689 shares of
common stock, 506,899 shares of common stock held directly by Watertone
Holdings, 28,940 shares of common stock held directly by The Kaniewski
Family Limited Partnership and 34,986 shares of common stock held directly
by The KFP Trust. Through BKB, LLC, 15.3% of which is owned by Scott A.
Kaniewski, Scott A. Kaniewski indirectly holds a general partnership
interest of .00153% of Watertone Holdings, representing an indirect
beneficial ownership interest in an additional 6,984 shares of such 506,899
shares of the Company's common stock held directly by Watertone Holdings.
The Kaniewski Family Limited Partnership, with respect to which Mr.
Kaniewski is a 1% limited partner and the general partner with sole voting
and dispositive power, holds a 4.95% limited partnership interest in
Watertone Holdings, representing an indirect beneficial ownership interest
in 225,968 shares of such 506,899 shares of the Company's common stock held
directly by Watertone Holdings, and through BKB, LLC, 0.05% of which is
owned by The Kaniewski Family Limited Partnership, The Kaniewski Family
Limited Partnership indirectly holds a general partnership interest of
.000005% of Watertone Holdings, representing an indirect beneficial
ownership interest in an additional 23 shares of such 506,899 shares of the
Company's common stock held directly by Watertone Holdings. Scott A.
Kaniewski disclaims beneficial ownership of all the shares of common stock
owned by the Kaniewski Family Limited Partnership for any purpose other
than voting and dispositive powers. The KFP Trust, whose sole trustee is
Stacey B. Kaniewski, Scott A. Kaniewski's wife, and whose sole
beneficiaries are Scott A. Kaniewski's children, holds a 6.00% limited
partnership interest in Watertone Holdings, representing an indirect
beneficial ownership interest in 273,901 shares of such 506,899 shares of
Empire Resorts' common stock held directly by Watertone Holdings, and
through BKB, LLC, 0.05% of which is owned by The KFP Trust, The KFP Trust
indirectly holds a general partnership interest of .000005% of Watertone
Holdings, representing an indirect beneficial ownership interest in an
additional 23 shares of such 506,899 shares of the Company's common stock
held directly by Watertone Holdings. Scott A. Kaniewski disclaims
beneficial ownership of all shares of common stock held by The KFP Trust.
(4) Represents options that are currently exercisable into 43,500 shares of
common stock and 4,200 shares of common stock held directly by Thomas W.
Aro.
(5) Includes 52,103 shares of common stock owned directly by Paul A. deBary and
135,581 shares of common stock held directly by Watertone Holdings. Mr.
deBary directly holds a 2.97% limited partnership interest in Watertone
Holdings, representing an indirect beneficial interest in such 135,581
shares of the Company's common stock held directly by Watertone Holdings.
(6) Includes options that are currently exercisable into 17,500 shares of
common stock and 1,319,859 shares of common stock of the Company held
directly by Americas Tower Partners. Morad Tahbaz beneficially owns a 20%
partnership interest of Americas Tower Partners, representing an indirect
beneficial interest in such 1,319,859 shares of the Company's common stock
held directly by Americas Tower Partners.
(7) Includes options that are currently exercisable into 15,000 shares of
common stock and 20,000 shares of common stock held directly by David
Matheson.
(8) Represents options that are currently exercisable into 15,000 shares of
common stock and 2,000 shares of common stock held directly by John Sharpe.
(9) Represents options that are currently exercisable into 15,000 shares of
common stock.
(10) Represents options that are currently exercisable into 15,000 shares of
common stock.
(11) Includes options that are currently exercisable into 15,000 shares of
common stock, 2,309,753 shares of common stock of the Company held directly
by Americas Tower Partners and 98,500 shares held in the name of Joseph E.
Bernstein on behalf of the JB Trust. Joseph E. Bernstein beneficially owns
a 1% economic interest and 50% voting power in Americas Tower Partners, and
the JB Trust, in which Mr. Bernstein's mother, Helen Bernstein, is sole
trustee and Mr. Bernstein's children are ultimate beneficiaries,
beneficially owns a 49% economic interest, with no voting rights. Joseph E.
Bernstein and the JB Trust beneficially own, 2% and 98%, respectively, of
35% of Americas Tower Partners' interest in the consolidation, representing
an aggregate indirect beneficial ownership interest in such 2,309,753
shares of the Company's common stock held directly by Americas Tower
Partners.
(12) Includes 98,500 shares of common stock held in the name of Joseph E.
Bernstein on behalf of the JB Trust and 2,263,558 shares of common stock of
the Company held directly by Americas Tower Partners. The JB Trust
beneficially owns a 49% economic interest, with no voting rights, in
Americas Tower Partners. The JB Trust beneficially owns 98% of 35% of
Americas Tower Partners' interest in the consolidation, representing an
indirect beneficial ownership interest in such 2,263,558 shares of the
Company's common stock held directly by Americas Tower Partners.
(13) Includes options that are currently exercisable into 15,000 shares of
common stock and 2,309,753 shares of common stock of the Company held
directly by Americas Tower Partners. Ralph Bernstein beneficially owns a
35% partnership interest of Americas Tower Partners, representing an
indirect beneficial ownership interest in such 2,309,753 shares of the
Company's common stock held directly by Americas Tower Partners.
(14) Represents 2,006,291 shares of common stock of the Company held directly by
Monticello Realty. Maurice Dabbah beneficially owns 35% of the membership
interests of Monticello Realty, representing an indirect beneficial
ownership interest in such 2,006,291 shares of the Company's common stock
held directly by Monticello Realty."
The subsection of the Proxy Statement entitled "Executive Compensation
- Compensation of Directors" is hereby amended and restated to read in its
entirety as follows:
"COMPENSATION OF DIRECTORS
DIRECTORS - CASH COMPENSATION
The members of the Company's Board of Directors each receive $20,000
per year and $1,000 per meeting. Directors that also serve on committees of the
Board of Directors, other than the audit committee, receive an additional $1,000
per committee meeting for non-employee committee members, with the chairperson
receiving $2,500 per meeting. With respect to the audit committee, its
non-employee chairperson receives an additional annual payment of $10,000, and
each audit committee member (including the chairperson) receives $2,500 per
audit committee meeting.
DIRECTORS - STOCK COMPENSATION
All members of the Board of Directors receive an annual grant of
10,000 stock options at the common stock's then current fair market value. All
stock options granted to the Company's directors vest immediately.
SPECIAL COMMITTEE
On November 11, 2003, the Company's Board of Directors created a
special committee, comprised solely of David Matheson, to assist the Company in
obtaining all federal and state regulatory approvals necessary to develop a
tribal casino in conjunction with the Cayuga Nation of New York. As
consideration for his work on this special committee, the Company agreed to
issue Mr. Matheson 20,000 shares of common stock on each of January 30, 2004 and
June 30, 2004. Mr. Matheson abstained from all votes of the Board of Directors
related to the creation of this special committee and the establishment of his
compensation."
All provisions of the Proxy Statement not specifically amended by this
supplement remain in full force and effect.
Please insert this supplement into your Proxy Statement and retain
both this supplement and the Proxy for future reference.
Sincerely,
/s/ Thomas W. Aro
--------------------------------------
Thomas W. Aro,
Chief Operating Officer and Secretary