As filed
with the Securities and Exchange Commission on August 21, 2009
Registration No.
333-_______
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
__________________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
__________________________
Empire
Resorts, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State
or Other Jurisdiction of
Incorporation or
Organization)
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13-3714474
(I.R.S.
Employer
Identification
Number)
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c/o
Monticello Casino and Raceway,
Route
17B, P.O. Box 5013
Monticello,
New York 12701
(845)
807-0001
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive Offices)
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Joseph
E. Bernstein
Chief
Executive Officer
Empire
Resorts, Inc.
c/o
Monticello Casino and Raceway, Route 17B, P.O. Box 5013
Monticello,
New York 12701
(845)
807-0001
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service)
__________________________
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Copies
to:
Robert
H. Friedman, Esq.
Olshan
Grundman Frome Rosenzweig & Wolosky LLP
Park
Avenue Tower
65
East 55th Street
New
York, New York 10022
(212)
451-2300
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________________________________________
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Approximate
date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box.
¨
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box.
ý
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
¨
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
¨
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 definition 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
ý
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Non-Accelerated
Filer
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Smaller
reporting company
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CALCULATION
OF REGISTRATION FEE
Title
of Shares to be Registered
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Amount
to be Registered (1)
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Proposed
Maximum Offering Price Per Share
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
Stock, $0.01 par value per share
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7,081,966
shares
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$1.86
(2)
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$13,172,457
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$735
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(1)
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In
the event of a stock split, stock dividend and similar transactions
involving the registrant’s common stock, $0.01 par value per share, the
shares registered hereby shall automatically be increased or decreased
pursuant to Rule 416 of the Securities Act of 1933, as amended (the
“Securities Act”).
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(c) of the Securities Act, based on the average of the high
and low prices of the registrant’s common stock on the Nasdaq Global
Market on August 18, 2009.
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The
Registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 21, 2009
PROSPECTUS
7,081,966
SHARES OF COMMON STOCK
Empire
Resorts, Inc.
This
prospectus relates to the reoffer and resale by the selling stockholders
identified in this prospectus of up to an aggregate 7,081,966 shares of our
common stock, which includes 277,778 shares of our common stock that are
issuable upon the exercise of warrants with exercise prices of $0.01 per
share. We will not receive any proceeds from the sale of our common
stock under this prospectus.
The
selling stockholders may sell the securities, from time to time, on any stock
exchange or automated interdealer quotation system on which the securities are
listed, in the over-the-counter market, in privately negotiated transactions or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale, at prices related to prevailing market prices or at prices
otherwise negotiated.
Our
principal executive offices are located at c/o Monticello Casino and Raceway,
Route 17B, P.O. Box 5013, Monticello, New York 12701. Our telephone
number is (845) 807-0001.
Our
common stock is listed on the Nasdaq Global Market under the symbol
“NYNY.” The last reported sale price for our common stock on August
20, 2009 was $3.20 per share.
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This
investment involves a high degree of risk. See “Risk Factors”
beginning on page 6.
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Neither
the Securities and Exchange Commission nor any state securities commission
has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
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The date
of this prospectus is ________ ____, 2009.
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You
should rely only on the information contained in this prospectus or any
accompanying supplemental prospectus and the information specifically
incorporated by reference. We have not authorized anyone to provide you with
different information or make any additional representations. This is not an
offer of these securities in any state or other jurisdiction where the offer is
not permitted. You should not assume that the information contained in or
incorporated by reference into this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of each of such
documents.
This
summary represents a summary of all material terms of the offering and only
highlights the more detailed information that appears elsewhere, or is
incorporated by reference, in this prospectus. This summary may not contain all
the information important to you as an investor. Accordingly, you should
carefully read this entire prospectus before deciding whether to invest in our
common stock.
Unless
the context otherwise requires, all references to “we,” “us,” or “our” in this
prospectus refer collectively to Empire Resorts, Inc., a Delaware corporation,
and its subsidiaries.
General
We were
organized as a Delaware corporation on March 19, 1993, and since that time have
served as a holding company for various subsidiaries engaged in the hospitality
and gaming industries.
We have
concentrated on developing gaming operations in New York
State. Through our wholly-owned subsidiary, Monticello Raceway
Management, Inc. (“MRMI”), we currently own and operate Monticello Casino and
Raceway, a video gaming machine (“VGM”) and harness horseracing facility located
in Monticello, New York, 90 miles Northwest of New York City. At
Monticello Casino and Raceway, we operate more than 1,200 VGMs as an agent for
the New York State Lottery and conduct pari-mutuel wagering through the running
of live harness horse races, the import simulcasting of harness and thoroughbred
horse races from racetracks across the country and the export simulcasting of
our races to offsite pari-mutuel wagering facilities.
On June
11, 2009, MRMI entered into a management services agreement (the
“
Agreement”) with
Sportsystems Gaming Management at Monticello, LLC (“Sportsystems”), a wholly
owned subsidiary of Delaware North Companies, dated as of June 10, 2009, whereby
MRMI retained Sportsystems to provide MRMI with management and consulting
services in connection with the video gaming, food service, and related
hospitality businesses conducted by MRMI for a term of three
years. Sportsystems will be paid a base management fee of 0.75% of
the gross gaming revenue of MRMI. In addition, Sportsystems will earn
an incentive fee equal to 20% of any improvement of EBITDA over a base EBITDA of
$9.4 million after accounting for the base management fee, subject to adjustment
under certain circumstances. If the planned Concord Hotel and Casino
commences gaming operations during the term of the Agreement, MRMI and
Sportsystems have agreed to renegotiate in good faith to make changes to the
method by which the management and incentive fees are calculated as are
reasonable, appropriate and equitable under the circumstances.
We also
plan to grow and diversify our current business operations by pursuing joint
ventures or other growth opportunities, including the commercial development of
our existing real estate holdings. We have an agreement, subject to
certain conditions, with Concord Empire Raceway Corp. (“Raceway Corp.”), a
subsidiary of Concord Associates, L.P., to provide advice and general managerial
oversight with respect to the operations at a harness horse racing facility to
be constructed at that certain parcel of land located in the Town of Thompson,
New York and commonly known as the Concord Hotel and Resort. No
assurance can be given that the conditions to the closing of the transaction
will be satisfied in order to complete the transaction, as planned.
We have
been working since 1996 to develop a Class III casino on a site 29.31 acre owned
by us adjacent to our Monticello, New York facility. As used herein,
Class III gaming means a full casino including slot machines, on which the
outcome of play is based upon randomness, and various table games including, but
not limited to, poker, blackjack and craps. Initially, this effort was pursued
through agreements with various Indian tribes. Our most recent
efforts were pursuant to agreements with the St. Regis Mohawk
Tribe. We were advised, however, that on January 4, 2008, the St.
Regis Mohawk Tribe received a letter from the Bureau of Indian Affairs denying
the St. Regis Mohawk Tribe’s request to take 29.31 acres into trust for the
purpose of building a Class III gaming facility to be located at Monticello
Casino and Raceway.
On July
18, 2008, our subsidiaries, MRMI, Monticello Raceway Development Company, LLC
and Monticello Casino Management, LLC entered into a settlement agreement with
the St. Regis Mohawk Gaming Authority and the St. Regis Mohawk Tribe pursuant to
which the parties agreed to release all claims against the other parties. The
settlement was amended on October 10, 2008 to eliminate any remaining
unfulfilled conditions and included our agreement to reimburse the St. Regis
Mohawk Tribe approximately $444,000 for expenses incurred by them in connection
with the project.
Much of
our ability to develop a successful business plan is now dependent on our
efforts to develop our interests in the Catskills region of the State of New
York, and our financial results in the future will be based on different
activities than those from our prior fiscal years, assuming that we continue as
a going concern.
Going
Concern and Liquidity
Our
ability to continue as a going concern is dependent upon a determination that we
did not have the obligation to repurchase our senior convertible notes on July
31, 2009, and/or our ability to arrange financing with other sources to fulfill
our obligations under the Loan Agreement, as defined below, and senior
convertible notes, if required. We are continuing our efforts to
obtain financing, but there is no assurance that we will be successful in doing
so. These factors, as well as continuing net losses and negative cash flows from
operating activities, raise substantial doubt about our ability to continue as a
going concern. Our consolidated financial statements do not include
any adjustments to the amounts and classification of assets and liabilities that
may be necessary should we be unable to continue as a going
concern. These circumstances caused our Independent Registered Public
Accounting Firm to include an explanatory paragraph in their report dated March
13, 2009 on our consolidated financial statements at December 31, 2008 and for
the year then ended regarding their substantial doubt about our ability to
continue as a going concern. Substantial doubt about our ability to
continue as a going concern may create negative reactions to the price of the
common shares of our stock and we may have a more difficult time obtaining
financing.
On
July 27, 2009, we entered into an amended and restated loan agreement (the “Loan
Agreement”), among us, the subsidiary guarantors party thereto, The Park Avenue
Bank, in its capacity as assignee of Bank of Scotland, and The
Park Avenue Bank, as
assignee of Bank of Scotland, as agent, which amends and restates our $10.0
million secured credit facility with the Bank of Scotland. As a
condition to the closing of the Loan Agreement, we issued warrants to purchase
an aggregate of 277,778 shares of our common stock, at an exercise price of
$0.01 per share, to The Park Avenue Bank and a designee of the participant under
the Loan Agreement (together, the “Warrants”). The Warrants expire on
July 26, 2014. On July 27, 2009, we also entered into an Investor
Rights Agreement with The Park Avenue Bank and the Participant in connection
with issuance of the Warrants (the “Investor Rights Agreement”). The
Investor Rights Agreement provides the holders of the Warrants with, among other
things, certain rights with respect to the registration under the Securities Act
of 1933, as amended (the “Securities Act”), of the resale of the shares issuable
upon exercise of the Warrants. The Loan Agreement provides for a
short term maturity date of July 28, 2009. On July 29, 2009, The Park
Avenue Bank delivered to us and the subsidiary guarantors under the Loan
Agreement, a notice of the occurrence of an event of default under the Loan
Agreement as a result of our failure to pay principal thereunder when due on the
maturity date of July 28, 2009. As a result, all principal
outstanding under the Loan Agreement, in the amount of approximately $4.4
million, is immediately due and payable. Pursuant to the terms of the
Loan Agreement, during the continuance of this event of default, we are to pay
interest on the unpaid principal amount of the outstanding loans at a rate per
annum equal to the greater of (i) the US prime rate plus 5.50% and (ii) 9.00%,
plus, in either case, 6%.
On
July 29, 2009, The Park Avenue Bank delivered a notice to The Bank of New York
advising that, as a result of the occurrence of the event of default under the
Loan Agreement described above, a standstill period has commenced under
that
certain Intercreditor Agreement, dated as of July 11, 2005, by and among Bank of
Scotland, The Bank of New York, as trustee under the indenture for the benefit
of each holder of our senior convertible notes, us and our subsidiaries party
thereto (the “Intercreditor Agreement”)
. Under the terms of the
Intercreditor Agreement, during the continuance of the standstill period each
holder of our senior convertible notes and The Bank of New York, as trustee
under the indenture for the benefit of each holder of the notes, are prohibited
from exercising any rights or remedies in respect of collection on, set off
against, marshalling of, or foreclosure on the collateral pledged by us to
secure its obligations under the notes. The standstill period will
continue until the earlier to occur of: (i) The Park Avenue Bank’s express
waiver or acknowledgement of the cure of the applicable event of default in
writing or the occurrence of the discharge of the Loan Agreement secured
obligations, and (ii) the date that is 90 days from the date of the Bank of New
York’s receipt of the standstill notice.
On June 30, 2009, pursuant
to the indenture, we furnished the written notice required to be delivered by us
to the trustee of
our senior
convertible notes of the time and manner under which each holder could elect to
require us to purchase the notes. As contemplated by the indenture,
we included with the notice the written form to be completed, signed (with
signature guaranteed), and delivered by each holder to the trustee before close
of business on July 31, 2009 to require us to purchase the notes. However, on
July 30 and 31, 2009, and on August 3, 2009, we requested, but never received,
from the trustee copies of all forms delivered to it by which any election was
made for us to purchase the notes or any part thereof. Neither the
trustee nor any holder furnished to us any originals or copies of any such
signed forms which had to be completed, signed and delivered to the trustee by
close of business on July 31, 2009 to require us to purchase the
notes. As the forms required to be completed, signed, and delivered
by July 31 2009 were not completed, signed and delivered by then, we concluded
that we are not obligated to purchase and pay for the notes before their
maturity on July 31, 2014. On August 3, 2009, we received a notice
from three entities, asserting that they were beneficial holders of notes in an
aggregate principal amount of $48,730,000, and that we were in default under the
indenture by not purchasing and paying for them. Accordingly, on
August 5, 2009, we instituted a declaratory judgment action in the Supreme Court
of the State of New York in Sullivan County, in which we named as defendants the
trustee, i.e., The Bank of New York Mellon Corporation, The Depository Trust
Company and twelve entities claiming interests in the notes. In the
action, we allege two causes of action, one seeking a declaration by the Court
that the defendants failed to properly exercise any option pursuant to Section
3.07(a) of the indenture to require us to purchase their interest in the notes,
and the other cause of action seeking a declaration that the three entities
which gave the purported notice of default have not invoked the Default
Consequences under the indenture. We did not make the interest payment on the
notes of $2.6 million that was due on July 31, 2009. The same three
entities that gave us the notice on August 3, 2009 also gave written notice to
us on August 11, 2009, asserting that we were in default under the indenture for
not paying the interest due on July 31, 2009.
On August
20, 2009, we made the interest payment to the Bank of New York, as trustee, on
our senior convertible notes of $2.6 million that was due on July 31,
2009. The interest payment was made within the time period permitted
pursuant to the indenture governing the notes.
If
the right to demand repayment of the notes had been validly exercsied, we would
not have an immediate source of repayment for our obligations under the Loan
Agreement or the senior convertible notes. Moreover, it is
anticipated that our current operations will not provide sufficient cash flow to
repay these obligations at maturity, if we are required to do so.
A
failure to repurchase the notes when required would result in an event of
default under the indenture and could result in a cross-default under any other
credit agreement to which we may be a party at such time. In
addition, an event that may constitute a change in control under the indenture
may also be an event of default under any credit agreement or other agreement
governing future debt. These events permit the lenders under such
credit agreement or other agreement to accelerate the debt outstanding
thereunder and, if such debt is not paid, to enforce security interests in the
collateral securing such debt or result in our becoming involved in an
insolvency proceeding.
On August
19, 2009, we entered into an Investment Agreement (the “Investment Agreement”)
with Kien Huat Realty III Limited, a corporation organized under the laws of the
Isle of Man (“Kien Huat”), pursuant to which (i) we issued to Kien
Huat 6,804,188 shares of our common stock, or approximately 19.9% of the
outstanding shares of common stock on a pre-transaction basis, for aggregate
consideration of $11 million (the “First Tranche”), and (ii) subject to and
following stockholder approval of the transaction, as required under applicable
NASDAQ Marketplace Rules, and the satisfaction of other customary closing
conditions, we are to issue to Kien Huat an additional 27,701,852 shares of our
common stock for additional consideration of $44 million (the “Second
Tranche”). During the period between the closing of the First Tranche
and the closing of the Second Tranche, we will be subject to certain customary
covenants related to the operation of our business.
As a
result of the closing of the Second Tranche, if approved by our stockholders,
Kien Huat would own 34,506,040 shares of our common stock, representing one
share less than 50.0% of our voting power following the closing. We
intend to use the proceeds of the First Tranche and, if such tranche is approved
by stockholders, the Second Tranche for transaction costs, to pay
interest on existing indebtedness, including approximately $2.6 million of
interest on our senior convertible notes due July 31, 2014, and for general
working capital.
Under the
Investment Agreement, the parties also agreed to negotiate in good faith and
cooperate to mutually agree upon the terms and conditions of a loan agreement,
to be executed upon the closing of the Second Tranche in a form and substance
reasonably agreeable to the parties, pursuant to which it is anticipated that
Kien Huat will make available to us a loan of up to the lesser of $10 million or
the maximum amount we are then permitted to borrow (taking into account our
other indebtedness at such time) under the terms of our existing
indebtedness. We would be permitted to use the proceeds of this loan,
among other things, to repay in full, purchase or acquire by assignment any of
our remaining obligations under our loan agreement with The Park Avenue Bank and
for working capital purposes.
In
connection with the Investment Agreement, we also entered into a registration
rights agreement with Kien Huat that provides, among other things, that Kien
Huat may require that we file one or more “resale” registration statements,
registering under the Securities Act the offer and sale of all of our common
stock issued or to be issued to Kien Huat pursuant to the Investment
Agreement.
Concurrently
with the execution of the Investment Agreement, holders of approximately 38% of
our outstanding common stock entered into a stockholder voting agreement,
pursuant to which such stockholders, among other things, agreed to vote all of
the shares of our voting capital stock that such stockholders own in favor of
the proposals to be recommended by us at the special meeting of stockholders to
be held to approve the transactions contemplated by the Investment Agreement and
other related matters.
As
required under the Investment Agreement, we also entered into a First Amendment
to Rights Agreement (the “Rights Agreement Amendment”) with Continental Stock
Transfer & Trust Company, as rights agent, effective August 19,
2009. The Rights Agreement Amendment amended that certain rights
agreement, dated as of March 24, 2008, by and between us and the rights agent
(the “Rights Agreement”) to provide that no person will become an “Acquiring
Person,” as such term is defined therein, if such person becomes the beneficial
owner of 20% or more of our common stock then outstanding as a consequence of an
agreement, transaction or understanding with us that has been previously
approved by a majority of our Board of Directors. As permitted under
the Rights Agreement Amendment, the Board of Directors resolved that Kien Huat
is not and will not be deemed to be an “Acquiring Person” for purposes of the
Rights Agreement as a result of the execution of the Investment Agreement and
the consummation of the transactions contemplated thereby.
Subject
to certain conditions, under the terms of the Investment Agreement, Kien Huat is
entitled to recommend three directors whom we are required to cause to be
elected or appointed to our Board of Directors. Upon the closing of
the First Tranche on August 19, 2009, Kien Huat recommended two of the three
directors, Messrs. Colin Au and G. Michael Brown, who were appointed to the
Board of Directors to serve within the Class II and I classes, respectively,
with terms expiring at the annual meeting during the calendar year 2011 and
2010, respectively. In addition, Kien Huat will be entitled to
recommend the appointment of the third director upon the closing of the Second
Tranche.
We
entered into a consulting agreement with Mr. Au, dated as of August 19, 2009
(the “Consulting Agreement”), pursuant to which Mr. Au has agreed to provide us
with certain consulting services, including assisting us in expanding our
presence in the gaming industry and advising us on matters related to casino
development. In consideration of the services to be performed under
the Consulting Agreement, we have agreed to pay to Mr. Au $300,000 annually,
paid in equal monthly installments. The term of the Consulting
Agreement expires on the third anniversary of the date of its execution, unless
extended by mutual agreement of the parties.
On August
12, 2009, the Board of Directors approved an amendment to our Second Amended and
Restated By-laws, in accordance with the terms of the Investment Agreement,
which became effective upon the closing of the First Tranche. The
amendment modernizes the methods by which notice of special meetings of the
Board of Directors may be given and provides that such notices must be given to
the members of the Board of Directors at least 72 hours before the time fixed
for the meeting.
As
required under the Investment Agreement, we also filed a Certificate of
Amendment to the Certificate of Designations of Series A Junior Participating
Preferred Stock with the Secretary of State of the State of Delaware on August
19, 2009, which increased the number of shares constituting such series of
preferred stock to 95,000.
Our
principal executive office is located at c/o Monticello Casino and Raceway,
Route 17B, P.O. Box 5013, Monticello, New York 12701. Our telephone
number is (845) 807-0001.
This
prospectus relates to the reoffer and resale, from time to time, of up to
7,081,966 shares of our common stock by the selling stockholders listed below,
which consists of: (i) 277,778 shares underlying the Warrants that we issued on
July 27, 2009, in accordance with the Loan Agreement, to The Park Avenue Bank
and Alan Lee and (ii) 6,804,188 shares that we issued to Kien Huat, in
accordance with the Investment Agreement. In connection with the
above, we agreed to register the resale of the 7,081,966 shares of common stock
with the Securities and Exchange Commission.
Our
registration of the resale of our common stock does not necessarily mean that
all or any portion of such common stock will be offered for resale by the
selling stockholders. We will not receive any proceeds from the sale of our
common stock under this prospectus. We have agreed to bear the
expenses of registering the shares under all federal and state securities
laws.
You
should read and carefully consider the risks described below together with the
risk factors described under the caption “Risk Factors” in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2008 and our Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 2009 and June 30, 2009,
each of which is on file with the Securities and Exchange Commission, and are
incorporated by reference in this prospectus, and in any accompanying prospectus
supplement.
An
investment in our common stock involves a high degree of risk. The risk factors
described below and incorporated herein by reference are those that we consider
to be material to an investment in our common stock and those which, if
realized, could have material adverse effects on our business, financial
condition or results of operations as specifically discussed therein. If such an
adverse event occurs, the trading price of our common stock could decline, and
you could lose all or part of your investment. Before you invest in
our common stock, you should be aware of various risks, including those
described below and incorporated by reference herein. You should carefully
consider these risk factors, together with all of the other information included
or incorporated by reference in this prospectus, before you decide whether to
purchase our common stock. This section includes or refers to certain
forward-looking statements. You should refer to the explanation of the
qualifications and limitations on such forward-looking statements discussed on
page 8.
The
Second Tranche may not close as anticipated.
We expect
that the Second Tranche will close during the second half of 2009, but it is
possible that the closing of the Second Tranche may not close when anticipated,
if at all. The closing of the Second Tranche is conditioned upon our
obtaining stockholder approval of the transaction contemplated by the Investment
Agreement as well as our compliance with other requirements contained
therein. If the Second Tranche does not close, we will not receive
the additional $44 million that Kien Haut has agreed to invest in us pursuant to
the Investment Agreement. Accordingly, a delay or failure to close the Second
Tranche may inhibit our ability to execute our business plan and could have a
material adverse effect on our liquidity, and we cannot predict the resultant
impact on our stock price if the Second Tranche does not close.
WHE
RE YOU CAN FIND MORE INFORMATION
We have
filed a registration statement on Form S-3 with the Securities and Exchange
Commission for the resale of the common stock being offered under this
prospectus. This prospectus does not contain all the information set
forth in the registration statement. You should refer to the
registration statement and its exhibits for additional
information. Whenever we make references in this prospectus to any of
our contracts, agreements or other documents, the references are not necessarily
complete and you should refer to the exhibits attached to the registration
statement for the copies of the actual contract, agreement or other
document.
You
should rely only on the information and representations provided or incorporated
by reference in this prospectus or any related supplement. We have
not authorized anyone else to provide you with different
information. The selling stockholders will not make an offer to sell
these shares in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of each such
document.
The
Securities and Exchange Commission maintains an Internet site at
http://www.sec.gov, which contains reports, proxy and information statements,
and other information regarding us. You may also read and copy any
document we file with the Securities and Exchange Commission at its Public
Reference Room, 100 F Street, N.E., Washington, D.C. 20549. Please
call the Securities and Exchange Commission at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room.
SPEC
IAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus includes or incorporates by reference forward-looking statements
within the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended. In some cases, you can identify
forward-looking statements by words such as “may,” “will,” “should,” “could,”
“expect,” “plan,” “anticipate,” “believe,” “estimate,” “intend,” “project,”
“seek,” “predict,” “potential” or “continue” or the negative of these terms or
other comparable terminology. These statements are only predictions. Actual
events or results may differ materially. In evaluating these statements, you
should specifically consider various factors, including the risks outlined under
“Risk Factors.” Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements. We are under no duty to update
any of the forward-looking statements after the date of this prospectus to
conform these statements to actual results.
INCO
RPORATION BY REFERENCE
The
Securities and Exchange Commission allows us to “incorporate by reference” the
information we file with them, which means that we can disclose important
information to you by referring to those documents. The information
we incorporate by reference is considered to be a part of this prospectus and
information that we file later with the Securities and Exchange Commission will
automatically update and replace this information. We incorporate by
reference the documents listed below and any future filings we make with the
Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, prior to the termination of
this offering:
(1)
|
Our
Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended
December 31, 2008;
|
|
|
(2)
|
Our
Quarterly Report on Form 10-Q for the period ended March 31,
2009;
|
|
|
(3)
|
Our
Quarterly Report on Form 10-Q for the period ended June 30,
2009;
|
|
|
(4)
|
The
filed portions of our Current Report on Form 8-K filed on February 5,
2009;
|
|
|
(5)
|
The
filed portions of our Current Report on Form 8-K filed on March 23,
2009;
|
|
|
(6)
|
The
filed portions of our Current Report on Form 8-K filed on March 24,
2009;
|
|
|
(7)
|
The
filed portions of our Current Report on Form 8-K filed on April 14,
2009
|
|
|
(8)
|
The
filed portions of our Current Report on Form 8-K filed on April 17,
2009;
|
|
|
(9)
|
The
filed portions of our Current Report on Form 8-K filed on May 1,
2009;
|
|
|
(10)
|
The
filed portions of our Current Report on Form 8-K filed on May 29,
2009;
|
|
|
(11)
|
The
filed portions of our Current Report on Form 8-K filed on June 3,
2009;
|
|
|
(12)
|
The
filed portions of our Current Report on Form 8-K filed on June 9,
2009;
|
|
|
(13)
|
The
filed portions of our Current Report on Form 8-K filed on June 15,
2009;
|
|
|
(14)
|
The
filed portions of our Current Report on Form 8-K filed on June 30,
2009;
|
|
|
(15)
|
The
filed portions of two Current Reports on Form 8-K filed on July 10,
2009;
|
|
|
(16)
|
The
filed portions of our Current Report on Form 8-K filed on July 22,
2009;
|
|
|
(17)
|
The
filed portions of our Current Report on Form 8-K filed on July 30,
2009;
|
|
|
(18)
|
The
filed portions of our Current Report on Form 8-K filed on August 6,
2009;
|
|
|
(19)
|
The
filed portions of our Current Report on Form 8-K filed on August 18,
2009;
|
|
|
(20)
|
The
filed portions of our Current Report on Form 8-K filed on August 19, 2009;
|
|
|
(21)
|
The
filed portions of our Current Report on Form 8-K filed on August 21, 2009;
and
|
|
|
(22)
|
The
description of our common stock contained in our registration statement on
Form 8-A12B, as filed with the Securities and Exchange Commission on June
20, 2001 pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as amended.
|
You may
request a copy of these filings (excluding the exhibits to such filings which we
have not specifically incorporated by reference in such filings) at no cost, by
writing or telephoning us at:
Empire
Resorts, Inc.
Attention:
Investor Relations
c/o
Monticello Casino and Raceway
Route
17B, P.O. Box 5013
Monticello,
New York 12701
(845)
807-0001
The
selling stockholders will receive all the proceeds from any sale of our common
stock under this prospectus. Accordingly, we will not receive any
part of the proceeds from the sale of our common stock under this
prospectus.
The
following table sets forth the name of the
selling stockholders, the
number of shares beneficially owned by the selling stockholders, the number of
shares that may be offered under this prospectus and the number of shares of
common stock owned by the selling stockholders after the offering is
completed. The selling stockholders have not been officers, directors
or had any material relationships within the past three years with us or any of
our predecessors or affiliates, except as follows. Eric Reehl, our
Chief Restructuring Officer and Chief Financial Officer, is currently serving as
the Acting Chief Financial Officer for Park Avenue Bancorp, Inc., a New York
domiciled commercial bank and an affiliate of The Park Avenue Bank.
Kien Huat
is party to the Investment Agreement governing the investment of up to $55
million in our common stock and providing Kien Huat with certain governance
rights, including representation on our board of directors.
Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission and generally includes voting or investment power with
respect to securities.
|
|
Number
of
Common
Shares
Owned Prior to
the Offering
|
|
|
Number
of
Common Shares
to be Offered
|
|
|
Number
of
Common Shares/Percentage
of Class to Be Owned
After
Completion
of the Offering
|
|
The
Park Avenue Bank (1)
|
|
|
166,667
|
(2)
|
|
|
166,667
|
|
|
|
0/0
|
%
|
Alan
Lee
|
|
|
111,111
|
(2)
|
|
|
111,111
|
|
|
|
0/0
|
%
|
Kien
Huat Realty III Limited (3)
|
|
|
6,804,188
|
|
|
|
6,804,188
|
|
|
|
0/0
|
%
|
TOTAL:
|
|
|
7,081,966
|
|
|
|
7,081,966
|
|
|
|
|
|
|
(1)
|
Charles
J. Antonucci, Sr., Chief Executive Officer of The Park Avenue Bank, and
Donald G. Glascoff, Jr., Chairman of the Board of The Park Avenue Bank,
have voting and dispositive power over the shares underlying the warrant
held by The Park Avenue Bank.
|
|
(2)
|
Represents
shares underlying a warrant that is currently
exercisable.
|
|
(3)
|
Mr.
Lim Kok Thay, a director of Kien Huat, may be deemed to have shared
beneficial ownership of
the shares held by Kien
Huat.
|
Our
registration of the shares included in this prospectus does not necessarily mean
that the selling stockholders will opt to sell any of the shares offered hereby.
The shares covered by this prospectus may be sold from time to time by the
selling stockholders so long as this prospectus remains in effect.
The
selling stockholders and any of their pledgees, donees, assignees, transferees
and successors-in-interest may, from time to time, sell any or all of their
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales
may be at fixed or negotiated prices. Subject to compliance with
applicable law, the selling stockholders may use any one or more of the
following methods when selling shares:
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
·
|
privately
negotiated transactions;
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
·
|
options
or other hedging transactions;
|
·
|
a
combination of any such methods of sale;
and
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions
involved.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of common stock, from time to time, under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon our
being notified in writing by a selling stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of common stock through
a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing
(i) the name of the selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price at which
such shares of common stock were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus, and (vi) other facts
material to the transaction.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling stockholders for purposes of this
prospectus.
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling
stockholders have represented and warranted to us that they do not have any
agreement or understanding, directly or indirectly, with any person to
distribute the common stock.
To our
knowledge, the selling stockholders are not broker-dealers or affiliates of a
broker-dealer.
We are
required to pay all fees and expenses incident to the registration of the
shares. We have agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
The
validity of the shares of common stock offered under this prospectus has been
passed upon by Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York, New
York. Robert H. Friedman, a member of such firm, is our secretary, a
former director of the company and holds options to purchase shares of our
common stock. Other members of such firm own shares of our common
stock.
The
financial statements incorporated by reference to the annual report on Form 10-K
have been incorporated in reliance on the reports of Friedman LLP, Independent
Registered Public Accounting Firm, given on the authority of said firm as
experts in auditing and accounting.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14.
Other Expenses of Issuance
and Distribution.
The
following table sets forth the various expenses which will be paid by us in
connection with the securities being registered. With the exception
of the Securities and Exchange Commission registration fee, all amounts shown
are estimates.
SEC
Registration
Fee
|
|
$
|
735
|
|
Legal
Fees and
Expenses
|
|
$
|
5,000
|
|
Accounting
Fees and
Expenses
|
|
$
|
2,500
|
|
Miscellaneous
|
|
$
|
265
|
|
Total
|
|
$
|
8,500
|
|
ITEM
15.
Indemnification of Directors
and Officers.
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a director,
officer, employee or agent to the Registrant. The Delaware General
Corporation Law provides that Section 145 is not exclusive of other rights to
which those seeking indemnification may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise. Article
V of the Registrant’s amended and restated bylaws and Article Sixth of our
certificate of incorporation provide that the Registrant shall indemnify its
directors and officers, and may indemnify its employees and other agents, to the
fullest extent permitted by the Delaware General Corporation Law and that the
Registrant shall pay the expenses incurred in defending any proceeding in
advance of its final disposition. However, the payment of expenses
incurred by a director or officer in advance of the final disposition of the
proceeding will be made only upon the receipt of an undertaking by the director
or officer to repay all amounts advanced if it should be ultimately determined
that the director or officer is not entitled to be indemnified.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant’s certificate of
incorporation provides for such limitation of liability.
The
Registrant maintains standard policies of insurance under which coverage is
provided (a) to its directors, officers, employees and other agents against loss
arising from claims made by reason of breach of duty or other wrongful act, and
(b) to the Registrant with respect to payments which may be made by the
Registrant to such officers and directors pursuant to the above indemnification
provision or otherwise as a matter of law.
ITEM
16.
Exhibits.
Exhibit
No.
|
Description
|
5.1*
|
Opinion
of Olshan Grundman Frome Rosenzweig & Wolosky LLP with respect to
legality of the Common Stock.
|
23.1*
|
Consent
of Friedman LLP.
|
23.2*
|
Consent
of Olshan Grundman Frome Rosenzweig & Wolosky LLP, included in Exhibit
No. 5.1.
|
24.1*
|
Power
of Attorney, included on the signature page to this Registration
Statement.
|
* Filed
herewith.
ITEM
17.
Undertakings.
(a)
|
The
undersigned registrant hereby
undertakes:
|
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however
, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if
the registration statement is on Form S-3 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
(c)
|
The
undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
|
(d)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such
issue.
|
(e)
|
The
undersigned registrant hereby undertakes
that:
|
(1) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Monticello, State of New York, on the 21st day of August, 2009.
|
EMPIRE
RESORTS, INC.
|
|
|
|
By:
|
|
|
|
Name:
|
Joseph
E. Bernstein
|
|
|
Title:
|
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Joseph E. Bernstein as his true and lawful
attorney-in-fact, each acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective amendments
to this registration statement, and any related registration statement filed
pursuant to Rule 462(b) of the Act and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact or
their substitutes, each acting along, may lawfully do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature
|
|
Title
|
Date
|
|
|
|
|
|
|
Chief
Executive Officer (Principal Executive Officer)
|
August
21, 2009
|
Joseph
E. Bernstein
|
|
|
|
|
|
|
|
|
|
Principal
Financial and Accounting Officer
|
August
21, 2009
|
Mark
Marasco
|
|
|
|
|
|
|
|
|
|
Director
|
|
Ralph
J. Bernstein
|
|
|
|
|
|
|
|
|
|
Director
|
August
21, 2009
|
Louis
R. Cappelli
|
|
|
|
|
|
|
|
|
|
Director
|
August
21, 2009
|
Paul
A. deBary
|
|
|
|
|
|
|
|
|
|
Director
|
August
21, 2009
|
James
Simon
|
|
|
|
|
|
|
|
|
|
Director
|
|
Colin
Au
|
|
|
|
|
|
|
|
|
|
Director
|
August
21, 2009
|
Nancy
Palumbo
|
|
|
|
|
|
|
|
|
|
Director
|
August
21, 2009
|
G.
Michael Brown
|
|
|
|
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