ex42to8k05558_08172009.htm


    Exhibit 4.2

     

    
      FIRST
AMENDMENT TO RIGHTS AGREEMENT

       

      FIRST
AMENDMENT TO RIGHTS
AGREEMENT, dated as of August 19, 2009 (the “Amendment”), between Empire
Resorts, Inc, a Delaware corporation (the “Company”), and Continental Stock
Transfer & Trust Company, a New York Corporation (the “Rights
Agent”).

       

      W
I T N E S S E T H

       

      WHEREAS,
the Company and the Rights Agent are parties to that certain Rights Agreement,
dated as of March 24, 2008 (the “Original Agreement”), pursuant to which the
Board of Directors of the Company (the “Board”) authorized and declared a
dividend distribution of one right (a “Right”) for each share of common stock,
par value $0.01 per share, of the Company (the “Common Stock”) outstanding (it
being understood that shares held by direct or indirect wholly owned
Subsidiaries of the Company (as defined therein) were not to be considered
outstanding) at the close of business on April 3, 2008 (the “Record Date”), and
authorized the issuance of one Right (as such number may be adjusted pursuant to
the provisions of Section 11(n) thereof) for each share of Common Stock (as such
number may be adjusted pursuant to the provisions of Section 11(n) thereof)
issued between the Record Date (whether originally issued or delivered from the
Company’s treasury) and the Distribution Date (as defined in the Original
Agreement), each Right initially representing the right to purchase one
one-thousandth of a share of Series A Junior Participating Preferred Stock of
the Company having the rights, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights attached thereto as Exhibit
A, upon the terms and subject to the conditions set forth in the Original
Agreement; and

       

      WHEREAS,
the parties to the Original Agreement desire to amend the Original Agreement to
enable the Board to exclude certain persons from being deemed an Acquiring
Person, as such term is defined in the Original Agreement, solely as a
consequence of an agreement, transaction or understanding that is approved by a
majority of the Board prior to the date on which such person becomes the
Beneficial Owner, as such term is defined in the Original Agreement, of 20% or
more of the Common Stock of the Company then
outstanding.

       

      NOW,
THEREFORE, in consideration of the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:

       

      Section
1.                      Definitions.  Capitalized
terms used herein and not otherwise defined shall have the meanings given them
in the Original Agreement.

       

      Section
2.                      Amendment.  Section
1(a) of the Original Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      “(a)           “Acquiring
Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 20% or more of the
Common Stock of the Company then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of
the Company or any Subsidiary of the Company or (iv) any entity holding Common
Stock for or pursuant to the terms of any such plan.  Notwithstanding
the foregoing, (i) no Person shall become an “Acquiring Person” as the result of
an acquisition of Common Stock by the Company which, by reducing the number of
Common Stock of the Company outstanding, increases the proportionate number of
Common Stock of the Company beneficially owned by such Person to 20% or more of
the Common Stock of the Company then outstanding; provided, however, that, if a
Person shall become the Beneficial Owner of 20% or more of the Common Stock of
the Company then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the Beneficial Owner of
any additional Common Stock of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common Stock) then such
Person shall be deemed to be an “Acquiring Person;” (ii) if, as of the date
hereof or at any time after the date hereof and prior to the first public
announcement of the adoption of this Agreement, any Person is or becomes the
Beneficial Owner of 20% or more of the Common Stock outstanding, such Person
shall not be deemed to be or to become an “Acquiring Person” unless and until
such time as such Person shall, after the first public announcement of the
adoption of this Agreement, become the Beneficial Owner of additional Common
Stock (other than pursuant to a dividend or distribution paid or made by the
Company on the outstanding Common Stock, pursuant to a split or subdivision of
the outstanding Common Stock or pursuant to a Qualified Offer (as defined in
Section 11(a)(ii)), unless, upon becoming the Beneficial Owner of such
additional Common Stock, such Person is not then the Beneficial Owner of 20% or
more of the Common Stock then outstanding; (iii) if the Board determines in good
faith that a Person who would otherwise be an “Acquiring Person,” as defined
pursuant to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person as promptly as practicable (as determined in good
faith by the Board) divests a sufficient number of Common Stock so that such
Person would no longer be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not be deemed
to be an “Acquiring Person” for any purposes of this Agreement; and (iv) no
Person shall become an “Acquiring Person” if such Person enters into an
agreement or transaction or understanding with the Company whereby, as a
consequence of that agreement or transaction or understanding, such Person would
otherwise become an “Acquiring Person” (but for the operation of this clause
(iv)), and such agreement, transaction or understanding is approved by a
majority of the Board prior to the date on which such person becomes the
Beneficial Owner of 20% or more of the Common Stock of the Company then
outstanding.”

       

      Section
3.                      Miscellaneous.

       

      (a)           Effect
of this Amendment.  Except as expressly amended pursuant to
this Amendment, no other changes, waivers or modifications to the Original
Agreement are intended or implied, and in all other respects the Original
Agreements is hereby specifically ratified, restated and confirmed by all
parties hereto as of the date hereof.  To the extent that any
provision of the Original Agreement is inconsistent with the provisions of this
Amendment, the provisions of this Amendment shall control.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (b)           Governing
Law.  The validity, interpretation and enforcement of this
Amendment and any dispute arising out of the relationship between the parties
hereto, whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of Delaware but excluding any principles of conflicts
of law or other rule of law that would cause the application of the law of any
jurisdiction other than the laws of the State of Delaware.

       

      (c)           Binding
Effect.  This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.

       

      (d)           Headings.  The
headings listed herein are for convenience only and do not constitute matters to
be construed in interpreting this Amendment.

       

      (e)           Counterparts.  This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
agreement.

       

      [REMAINDER
OF PAGE INTENTIONALLY BLANK]

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, all as of the day and year first above written.

       

      
        	
                Attest:

              	 
      	
                EMPIRE
      RESORTS, INC.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                By:

              	/s/ Jason
      S. Saltsberg	 
      	
                By:

              	/s/ Joseph
      Bernstein
	 
      	
                Name:

              	
                Jason
      S. Saltsberg

              	 
      	 
      	
                Name:

              	
                Joseph
      Bernstein

              
	 
      	
                Title:

              	
                Assistant
      Secretary

              	 
      	 
      	
                Title:

              	
                Chief
      Executive Officer

              


      

       

       

      
        	
                Attest:

              	 
      	
                CONTINENTAL
      STOCK TRANSFER & TRUST COMPANY

              
	 
      	 
      	
                as
      Rights Agent

              
	 
      	 
      	 
      
	
                By:

              	/s/
      Mark B. Zinkel	 
      	
                By:

              	/s/
      Leslie A. DeLuca
	 
      	
                Name:

              	Mark
      B. Zinkel  	 
      	 
      	
                Name:

              	Leslie
      A. DeLuca  
	 
      	
                Title:

              	Vice
      President	 
      	 
      	
                Title:

              	Vice
      President


      

       

       

       

      
        [SIGNATURE
PAGE TO FIRST AMENDMENT TO RIGHTS
AGREEMENT]