sec document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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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): March 3, 2005
EMPIRE RESORTS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 001-12522 13-3714474
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
c/o Monticello Raceway, Route 17B, Monticello, NY 12701
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (845) 794-4100
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N/A
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(Former name or former address, if changed since last report.)
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):
/ / 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 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
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On March 3, 2005, Empire Resorts, Inc. (the "Company" ) entered into an
Agreement and Plan of Merger and Contribution by and among the Company, Empire
Resorts Holdings, Inc. ("Newco"), Empire Resorts Sub, Inc. ("Merger Sub"),
Concord Associates Limited Partnership, and Sullivan Resorts, LLC (the "Merger
Agreement"). The Merger Agreement amends, restates and supersedes the November
12, 2004 letter agreement between the Company, Concord Associates Limited
Partnership and Sullivan Resorts, LLC regarding the acquisition by the Company
of certain real estate assets, including the Concord and Grossinger's resorts,
which are located in the Catskills region of New York (the "Letter Agreement").
The acquisition is expected to allow the Company to obtain additional casino and
hotel development sites, totaling over 1,200 acres of land which also include
the Monster, International, Challenger and Grossinger's golf courses.
The Merger Agreement provides for the closing of the transaction
immediately after satisfaction of certain conditions, including the approval of
the transaction by the Company's shareholders and any required consent of
holders of the Company's convertible senior notes is obtained. A condition in
the prior Letter Agreement that land designated for Native American gaming at
the Monticello Raceway or the Concord Resort first be transferred to the United
States to be held in trust for a Native American Nation has been waived.
The transaction contemplated by the Merger Agreement is intended to qualify
as a tax-free exchange pursuant to ss.351 of the Internal Revenue Code of 1986,
as amended. Prior to executing the Merger Agreement, the Company formed two new
subsidiaries, Newco and Merger Sub. Merger Sub will merge with and into the
Company, with the Company being the surviving corporation. Each share of the
Company's common stock will be converted into an equal number of shares of Newco
common stock and each share of Merger Sub will convert into an equal number of
shares of the Company's common stock. As a result, upon consummation of these
transactions, Newco will be owned by the Company's former public stockholders,
the Company will become a wholly owned subsidiary of Newco and Merger Sub will
be dissolved through merger. As consideration for the acquisition, 18 million
common shares of Newco will be issued to Concord Associates Limited Partnership
and Sullivan Resorts, LLC, representing approximately 40% of the total number of
issued and outstanding common shares of the Company after the closing, on a
fully diluted basis and the assumption of related debt.
The foregoing summary of the Merger 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 2.1
and incorporated herein by reference.
In connection with the execution of the Merger Agreement, the Company and
Concord Associates Limited Partnership also entered into certain amendments to
the option agreement, dated November 12, 2004, by and among Empire Resorts, Inc.
and Concord Associates Limited Partnership, dated as of March 3, 2005, and the
form of voting agreement by and between Concord Associates Limited Partnership
and certain of the Company's shareholders holding approximately 40% in the
aggregate of the Company's common stock, copies of which are attached hereto as
EXHIBIT 10.1 and EXHIBIT 10.2, respectively, and incorporated herein by
reference.
Item 8.01. OTHER EVENTS.
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On March 4, 2005, the Company issued a press release announcing that the
Company entered into the Merger Agreement. For additional information, reference
is made to the press release attached hereto as EXHIBIT 99.1.
Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
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(c) Exhibits
EXHIBIT NO. EXHIBITS
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2.1 Agreement and Plan of Merger and Contribution, dated
as of March 3, 2005, by and among Empire Resorts,
Inc., Empire Resorts Holdings, Inc., Empire Resorts
Sub, Inc., Concord Associates Limited Partnership,
and Sullivan Resorts, LLC (filed without exhibits or
schedules, all of which are available upon request,
without cost).
10.1 Amendment No. 1 to Option Agreement, dated November
12, 2004, by and among Empire Resorts, Inc. and
Concord Associates Limited Partnership, dated as of
March 3. 2005.
10.2 Form of Amendment No. 1 to Voting Agreement, by and
between Concord Associates Limited Partnership and
Stockholder.
99.1 Press release of Empire Resorts, Inc. dated March 4,
2005.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EMPIRE RESORTS, INC.
Dated: March 8, 2005 By: /s/ Scott A. Kaniewski
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Name: Scott A. Kaniewski
Title: Chief Financial Officer