NYNY Empire Resorts Inc

SCHEDULE 14C

INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE

SECURITIES EXCHANGE ACT OF 1934

(Amendment No.    )

Check the appropriate box:

EMPIRE RESORTS, INC.

(Name of Registrant as Specified in Its Charter)

Payment of Filing Fee (check the appropriate box):

NOTICE OF ACTION BY WRITTEN CONSENT OF STOCKHOLDERS

EMPIRE RESORTS, INC.

C/O MONTICELLO CASINO AND RACEWAY

204 STATE ROUTE 17B, P.O. BOX 5013

MONTICELLO, NEW YORK 12701

DATE FIRST MAILED TO STOCKHOLDERS: ON OR ABOUT FEBRUARY 13, 2019

WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED

NOT TO SEND US A PROXY

To the Stockholders of Empire Resorts, Inc.:

On November 6, 2018, Empire Resorts, Inc. (“Empire,” and, together with its subsidiaries, the “Company, “us,” “our” or “we”) entered into a letter agreement (as amended and restated on November 9, 2018, the “KH 2018 Preferred Stock Commitment Letter”) with Kien Huat Realty III Limited (“Kien Huat”), the Company’s largest stockholder, pursuant to which Kien Huat committed to provide additional equity financing in support of the general corporate and working capital requirements of the Company and its subsidiaries.

Pursuant to the KH 2018 Preferred Stock Commitment Letter, Kien Huat agreed to purchase up to $126 million (the “Commitment Amount”) of Series F Preferred Stock, $0.01 par value per share (the “Series F Preferred Stock”) of the Company on the terms set forth in the KH 2018 Preferred Stock Commitment Letter and in accordance with the terms of the Certificate of Designations, Preferences and Rights of the Series F Preferred Stock, which the Company filed with the Secretary of State of the State of Delaware on November 5, 2018 and amended and restated on November 9, 2018 (as amended and restated, the “Series F Certificate of Designation”). Kien Huat committed to purchase up to the Commitment Amount of the Series F Preferred Stock pursuant to the following schedule: (i) up to $12 million no earlier than November 9, 2018, (ii) up to $20 million no earlier than February 15, 2019, (iii) up to $20 million no earlier than May 15, 2019, (iv) up to $15 million no earlier than August 15, 2019, (v) up to $37 million no earlier than November 15, 2019 and (vi) up to $22 million no earlier than March 15, 2020. The Company agreed to use its reasonable efforts to secure third-party financing in an amount equal to the Commitment Amount, and the Commitment Amount will be reduced by the amount of any third-party financing raised by the Company. However, any equity financing raised by the Company from any person entering into a commercial agreement relating to online gaming and sports betting at Resorts World Catskills in an amount up to $29 million will not reduce the Commitment Amount.

On November 14, 2018, an affiliate of bet365 Group Limited (“bet365”) entered into a common stock purchase agreement (the “bet365 Common Stock Purchase Agreement”) to purchase up to $50 million in shares of common stock of the Company in connection with the Company’s collaboration with another bet365 affiliate to develop a physical and online sportsbook and digital gaming services at Resorts Word Catskills. $33.715 million (the “bet365 proceeds”) of the $50 million was purchased on November 14, 2018, with the balance to acquire at a future date, subject to certain conditions. In accordance with the KH 2018 Preferred Stock Commitment Letter, the Commitment Amount was reduced by the amount of bet365 proceeds exceeding $29 million, from $126 million to $121.28 million. Any future sales to bet365 pursuant to the bet365 Common Stock Purchase Agreement would further reduce the Commitment Amount by such additional amount.

Kien Huat is entitled to a funding fee in the amount of 1% of the portion of the Commitment Amount funded by Kien Huat at the time of any such funding. Unless earlier terminated by mutual agreement, the KH 2018 Preferred Stock Commitment Letter will terminate upon the earlier of (a) the Company’s receipt of third-party financing in the Commitment Amount or (b) April 15, 2020.

On November 13, 2018, in accordance with the KH 2018 Preferred Stock Commitment Letter, the Company and Kien Huat entered into a subscription agreement (the “KH Subscription Agreement”) pursuant to which Kien Huat purchased 120 shares of the Company’s Series F Preferred Stock, for an aggregate purchase price of $12 million and net proceeds to the Company (after deducting a $120,000 funding fee due to Kien Huat) of $11.88 million.

Pursuant to the Series F Certificate of Designation, the Series F Preferred Stock is convertible into shares of the Company’s common stock, par value $.0.01 per share (the “Common Stock” and the shares of Common Stock into which the Series F Preferred Stock is convertible, the “Conversion Shares”) at any time and from time to time (and in certain cases, automatically) prior to December 31, 2038 (the “Maturity Date”), and is automatically convertible on the Maturity Date. Subject to the voting limitation prior to effectiveness of Stockholder Approval described below, the Series F Preferred Stock is entitled to vote on all matters submitted to the vote of the holders of Common Stock, with each share of Series F Preferred Stock having a number of votes equal to the number of shares of Common Stock into which such share is convertible at any given time.

The transactions contemplated by the KH 2018 Preferred Stock Commitment Letter and the KH Subscription Agreement, including the issuance of the Series F Preferred Stock and the Conversion Shares, were approved by the Board of Directors and the Audit Committee of the Company.

The Company’s entry into the KH 2018 Preferred Stock Commitment Letter and the KH Subscription Agreement did not require approval of our stockholders. However, pursuant to the Series F Certificate of Designation, (i) the Company may not issue Conversion Shares equal to 20% or more of the Common Stock or voting power of the Company issued and outstanding prior to a conversion of the Series F Preferred Stock (the “Conversion Limitation”), and (ii) the total number of votes represented by the Series F Preferred Stock on an as-converted basis is capped at an amount not to exceed, at any time, 20% or more of the voting power outstanding at such time (the “Voting Limitation” and together with the Conversion Limitation, the “Series F Caps”). Such Series F Caps must remain in place until the Company obtains approval for their removal by a majority of the voting power of the Company’s issued and outstanding voting stock in accordance with the applicable listing rules (the “Nasdaq Rules”) of The Nasdaq Stock Market LLC (the “Stockholder Approval”), and such approval becomes effective in accordance with Rule 14c-2 under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”). The Series F Caps were added to the Series F Certificate of Designation in order to comply with Rule 5635(d) of the Nasdaq Rules.

This Notice and the accompanying Information Statement are being furnished to the stockholders of the Company to advise our stockholders that the holders of a majority of voting power of the issued and outstanding shares of the Company’s Common Stock, Series B Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”), and Series F Preferred Stock (the Series F Preferred Stock, together with the Series B Preferred Stock and the Common Stock, the “Voting Stock”) have acted by written consent to approve the removal of the Series F Caps on February 1, 2019.

Please review the Information Statement included with this Notice for a more complete description of these matters.

Pursuant to Section 228(e) of the General Corporation Law of the State of Delaware, the close of business on February 1, 2019, the date that the holders of a majority of the voting power of the Voting Stock delivered to the Company written consent approving the removal of the Series F Caps, is the record date for the determination of stockholders entitled to notice of the action by written consent. Pursuant to Rule 14c-2 under the Exchange Act, the actions taken by the holders of a majority of the voting power of the Voting Stock will not become effective until 20 calendar days after the mailing of the Information Statement to the Company’s stockholders, or March 5, 2019. This Notice and accompanying Information Statement are first being mailed to stockholders on or about February 13, 2019.

IMPORTANT NOTICE: THIS NOTICE AND THE COMPANY’S INFORMATION STATEMENT CAN BE ACCESSED DIRECTLY AT THE FOLLOWING INTERNET ADDRESS: http://www.cstproxy.com/empireresorts/is2019.

WE ARE NOT ASKING YOU FOR A PROXY AND

YOU ARE REQUESTED NOT TO SEND US A PROXY.

As the matters set forth in this Notice and accompanying Information Statement have been duly authorized and approved by the written consent of the holders of a majority of the voting power of the Voting Stock, your vote or consent is not requested or required to approve these matters. The accompanying Information Statement is provided solely for your information, and we are not, by sending such Information Statement, asking any of our security holders to vote or take any other action. This Notice and the accompanying Information Statement also serves as the notice required by Section 228 of the General Corporation Law of the State of Delaware of the taking of a corporate action without a meeting by less than unanimous written consent of the Company’s stockholders.

Monticello, New York

February 11, 2019

EMPIRE RESORTS, INC.

c/o Monticello Casino and Raceway

204 State Route 17B, P.O. Box 5013

Monticello, New York 12701

Kien Huat is entitled to a funding fee in the amount of 1% of the portion of the Commitment Amount funded by Kien Huat at the time of any such funding. Unless earlier terminated by mutual agreement, the KH 2018 Preferred Stock Commitment Letter will terminate upon the earlier of (a) the Company’s receipt of third-party financing in the Commitment Amount or (b) April 15, 2020.

On November 13, 2018, in accordance with the KH 2018 Preferred Stock Commitment Letter, the Company and Kien Huat entered into a subscription agreement (the “KH Subscription Agreement”) pursuant to which Kien Huat purchased 120 shares of the Company’s Series F Convertible Preferred Stock, $0.01 per share (the “Series F Preferred Stock”), for an aggregate purchase price of $12 million and net proceeds to the Company (after deducting a $120,000 funding fee due to Kien Huat) of $11.9 million.

Pursuant to the Series F Certificate of Designation, the Series F Preferred Stock is convertible into shares of the Company’s common stock, par value $.0.01 per share (the “Common Stock” and the shares of Common Stock into which the Series F Preferred Stock is convertible, the “Conversion Shares”) at any time and from time to time (and in certain cases, automatically) prior to December 31, 2038 (the “Maturity Date”), and is automatically convertible on the Maturity Date. Subject to the voting limitation prior to effectiveness of Stockholder Approval described below, the Series F Preferred Stock is entitled to vote on all matters submitted to the vote of the holders of Common Stock, with each share of Series F Preferred Stock having a number of votes equal to the number of shares of Common Stock into which such share is convertible at any given time.

On November 5, 2018, the Audit Committee and the Board of Directors approved the Original KH 2018 Preferred Stock Commitment Letter and the transactions contemplated thereto, along with the filing of the Original Series F Certificate of Designation with the Secretary of State of Delaware. On November 9, 2018, for purposes of complying with Rule 5635(d) of the listing rules (the “Nasdaq Rules”) of The Nasdaq Stock Market LLC (“Nasdaq”), the Audit Committee and the Board of Directors approved the amendment and restatement of each of the Original KH 2018 Preferred Stock Commitment Letter and the Original Series F Certificate of Designation to add references to the Conversion Limitation and the Voting Limitation on the Series F Preferred Stock and related stockholder consent requirements.

The Company’s entry into the KH 2018 Preferred Stock Commitment Letter and the KH Subscription Agreement did not require approval of our stockholders. However, pursuant to the Series F Certificate of Designation, (i) the Company may not issue Conversion Shares equal to 20% or more of the Common Stock or voting power of the Company issued and outstanding prior to a conversion of the Series F Preferred Stock (the “Conversion Limitation”), and (ii) the total number of votes represented by the Series F Preferred Stock on an as-converted basis is capped at an amount not to exceed, at any time, 20% or more of the voting power outstanding at such time (the “Voting Limitation” and together with the Conversion Limitation, the “Series F Caps”). Such Series F Caps must remain in place until the Company obtains approval for their removal by a majority of the voting power of the Company’s issued and outstanding voting stock in accordance with the applicable listing rules (the “Nasdaq Rules”) of The Nasdaq Stock Market LLC (the “Stockholder Approval”), and such approval becomes effective in accordance with Rule 14c-2 under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”). If the total number of votes represented by the issued and outstanding Series F Preferred Stock on an as-converted basis would exceed the Voting Limitation before Stockholder Approval is obtained, the votes represented by such outstanding Series F Preferred Stock would be adjusted downward to a portion of the aggregate votes until such Stockholder Approval is obtained.

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The Notice and the accompanying Information Statement are being furnished to the stockholders of the Company to advise our stockholders that the holders of a majority of the voting power of the issued and outstanding shares of the Company’s Common Stock, Series B Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”), and Series F Preferred Stock (the Series F Preferred Stock, together with the Series B Preferred Stock and the Common Stock, the “Voting Stock”) have acted by written consent to approve the removal of the Series F Caps on February 1, 2019.

This Information Statement is being mailed on or about February 13, 2019 to stockholders of record of the Company as of the close of business on February 1, 2019 (the “Record Date”) and is being delivered to inform you of the corporate actions described herein before they take effect in accordance with Rule 14c-2 of the Exchange Act. You are urged to review this Information Statement for a more complete description of transactions contemplated therein.

None of the corporate actions described above may become effective until March 5, 2019, which is 20 calendar days following the date on which this Information Statement is first sent to our stockholders.

Our principal executive offices are located at c/o Monticello Casino and Raceway, 204 State Route 17B, P.O. Box 5013, Monticello, New York 12701.

Approval of the KH 2018 Preferred Stock Commitment Letter, Series F Certificate of Designation, and KH Subscription Agreement by the Board of Directors and Audit Committee

On November 5, 2018, the Audit Committee and the Board of Directors approved the Original KH 2018 Preferred Stock Commitment Letter and the transactions contemplated thereto, along with the filing of the Original Series F Certificate of Designation with the Secretary of State of Delaware. On November 9, 2018, for purposes of complying with Nasdaq Rule 5635(d), the Audit Committee and the Board of Directors approved the amendment and restatement of each of the Original KH 2018 Preferred Stock Commitment Letter and the Original Series F Certificate of Designation to add reference to the Series F Caps and related consent requirements. A copy of the KH 2018 Preferred Stock Commitment Letter, the Series F Certificate of Designation and the KH Subscription Agreement, as approved and executed by the parties, are attached as Annex A, Annex B and Annex C , respectively. The KH Subscription Agreement and the Series F Certificate of Designation have also been filed as exhibits to the Company’s filings with the Securities and Exchange Commission (the “SEC”). For more information regarding the approval of the KH 2018 Preferred Stock Commitment Letter, please refer to the section entitled “Background and Reasons for the Entry into the KH 2018 Preferred Stock Commitment Letter and Approval of the Issuance of Series F Preferred Stock” below.

Requirement to Obtain Stockholder Approval

We are subject to the Nasdaq Rules because our Common Stock is currently listed on the Nasdaq Global Market.

Pursuant to Nasdaq Rule 5635(d), stockholder approval is required prior to the issuance by the Company of Common Stock (or securities convertible into or exercisable for Common Stock) in connection in a transaction other than a public offering of securities involving the sale, issuance or potential issuance of Common Stock (or securities convertible into or exercisable for Common Stock)

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at a price less than a Minimum Price which equals 20% or more of Common Stock or 20% or more of the voting power outstanding before the issuance. “Minimum Price” is defined by Nasdaq Rule 5635(d) as the lower of: (i) the closing price (as reflected on Nasdaq.com) immediately preceding the signing of the binding agreement; or (ii) the average closing price of the common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of the binding agreement. On November 13, 2018, the date of the KH Subscription Agreement, the effective Minimum Price relating to the Series F Preferred Stock issued thereunder was $7.62.

We cannot currently determine the total number of Conversion Shares that will be issued or whether such Conversion Shares will be issued at a price less than the Minimum Price because such number depends on the circumstances under which the Series F Preferred Stock may be converted, the timing of any such conversion in accordance with the terms of the Series F Certificate of Designation, and the effective conversion price of the Series F Preferred Stock at such time. For instance, prior to the Maturity Date, each Series F Preferred Stock is convertible at the holder’s option into that number of Conversion Shares determined by dividing the Stated Value (as defined below) by a conversion price of $20.00 (subject to adjustment). If the Series F Preferred Stock have not been converted prior to the Maturity Date, the conversion price on the Maturity Date will be based on the volume-weighted average price for a share of Common Stock for the 90 consecutive trading days ending on the trading day immediately prior to the Maturity Date. Additionally, in the event of a Change of Control Transaction (as defined below) prior to the Maturity Date, the Series F Preferred Stock will be converted into that number of Conversion Shares determined by dividing the Stated Value by the per share consideration being offered to any holder of Common Stock in connection with any such Change of Control Transaction.

Further, we cannot determine the total number of votes that each share of Series F Preferred Stock will represent at any given time because such number depends on the number of Conversion Shares into which such share of Series F Preferred Stock is convertible into at any given time.

Due to these uncertainties, absent the Series F Caps, the transactions contemplated by the KH 2018 Preferred Stock Commitment Letter and the KH Subscription Agreement may result in the issuance of securities to Kien Huat equal to or convertible into 20% or more of the Company’s Common Stock or 20% or more of the voting power of our Voting Stock for less than the Minimum Price. As a result of the foregoing, in accordance with Nasdaq Rule 5635(d), the Series F Certificate of Designation provides that the Series F Preferred Stock will be subject to the Series F Caps until such time as we obtain stockholder approval for their removal.

The Action by Written Consent

On February 1, 2019, the holders of a majority of the voting power of our outstanding Voting Stock approved by written consent (the “Written Consent”) the removal of the Series F Caps. Pursuant to the Exchange Act, the corporate actions approved by the Written Consent will become effective 20 calendar days after this Information Statement is first sent or given to our stockholders, which would be March 5, 2019.

No Voting Required

We are not seeking a vote, authorizations or proxies from you. Our Second Amended and Restated Certificate of Incorporation, Third Amended and Restated Bylaws and Section 228

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(“Section 228”) of the General Corporation Law of the State of Delaware (the “DGCL”) provide that stockholders may take action without a meeting of the stockholders and without prior notice if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding Voting Stock holding not less than the minimum number of votes that would be necessary to approve such actions at a stockholders meeting at which all shares entitled to vote thereon were present and voted. The approval, by way of written consent, of at least a majority of the voting power of the outstanding Voting Stock was required to approve the removal of the Series F Caps for purposes of the Nasdaq Rules, and such approval has been obtained and will become effective on March 5, 2019.

As of the Record Date, we had 34,423,250 shares of Common Stock, 44,258 shares of Series B Preferred Stock and 120 shares of Series F Preferred Stock issued and outstanding and entitled to vote. As of the Record Date, each share of Common Stock entitles the holder thereof to one vote, each share of Series B Preferred Stock entitles the holder thereof to fifty-four thousandths (.054) of one vote and each share of Series F Preferred Stock entitles the holder thereof to 5,000 votes, except that pursuant to Nasdaq rule 5635(d), none of the shares of Series F Preferred Stock issued as of the Record Date were entitled to vote on actions subject to Stockholder approval that were described herein. Accordingly, as of the Record Date, a total of 34,425,639 shares were entitled to vote on the removal of the Series F Caps.

Notice Pursuant to Section 228

Pursuant to Section 228, we are required to provide prompt notice of the taking of a corporate action by written consent to our stockholders who have not consented in writing to such action. The Notice and this Information Statement serves as the notice required by Section 228.

IMPORTANT NOTICE: THIS NOTICE AND THE COMPANY’S INFORMATION STATEMENT CAN BE ACCESSED DIRECTLY AT THE FOLLOWING INTERNET ADDRESS: http://www.cstproxy.com/empireresorts/is2019.

Dissenters’ Rights of Appraisal

The DGCL does not provide dissenters’ rights of appraisal to our stockholders in connection with the matters approved by the Written Consent.

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BACKGROUND AND REASONS FOR THE ENTRY INTO THE KH 2018 PREFERRED STOCK COMMITMENT LETTER AND APPROVAL OF THE ISSUANCE OF SERIES F PREFERRED STOCK

Background for the Entry into the KH 2018 Preferred Stock Commitment Letter and Approval of the Issuance of Series F Preferred Stock

The Board of Directors and the Company’s management regularly evaluate the Company’s liquidity and capital requirements. On November 5, 2018, the Audit Committee and the Board of Directors approved the Original KH 2018 Preferred Stock Commitment Letter with Kien Huat, our largest stockholder, pursuant to which Kien Huat committed to provide equity financing in support of the general corporate and working capital requirements of the Company and its subsidiaries, along with the filing of the Original Series F Certificate of Designation with the Secretary of State of Delaware. On November 9, 2018, for purposes of complying with Nasdaq Rule 5635(d), the Audit Committee and the Board of Directors approved the amendment and restatement of each of the Original KH 2018 Preferred Stock Commitment Letter and the Original Series F Certificate of Designation to add reference to the Conversion Limitation and the Voting Limitation on the Series F Preferred Stock and related stockholder consent requirements for removal of such Series F Caps, determined that the transactions contemplated thereby were fair to, and in the best interest of, the Company and its stockholders, and recommended that its stockholders approve the removal of the Series F Caps.

On November 6, 2018, and as amended and restated on November 9, 2018, we entered into the KH 2018 Preferred Stock Commitment Letter with Kien Huat.

On November 14, 2018, the Company entered into a sportsbook and digital gaming collaboration agreement (the “Collaboration Agreement”) with Hillside (New York) LLC, an affiliate of bet365. Directly and through its affiliates, bet365 operates, owns, controls and manages online gaming and sports betting services throughout the world. The Collaboration Agreement provides the terms and conditions on which bet365 will participate with the Company in the offering of retail sports betting, an online sportsbook, online casino/table games and online poker in the State of New York if and when permitted by applicable law (the “Collaboration”). In connection with the Collaboration, the Company entered into the bet365 Common Stock Purchase Agreement with Hillside (New Media Holdings) Limited (the “bet 365 Investor”), another bet365 affiliate, pursuant to which the bet365 Investor agreed to purchase up to 2,500,000 shares of Common Stock of the Company at $20 per share for an aggregate potential investment of up to $50 million. The bet365 Investor purchased 1,685,759 shares of common stock upon the execution of the bet365 Common Stock Purchase Agreement (the “Initial Closing Shares”). The execution of the KH 2018 Preferred Stock Commitment Letter and Kien Huat’s subscription for the initial $12 million of the Commitment Amount were conditions to the closing on the sale of the Initial Closing Shares.

On February 1, 2019, the holders of a majority of the voting power of the Voting Stock delivered to the Company its written consent approving the removal of the Series F Caps.

KH 2018 Preferred Stock Commitment Letter

On November 6, 2018, we entered into the Original KH 2018 Preferred Stock Commitment Letter with Kien Huat. Pursuant to the Original KH 2018 Preferred Stock Commitment Letter, Kien

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Huat agreed to purchase up to $126 million of Series F Preferred Stock of the Company on the terms set forth in the Original KH 2018 Preferred Stock Commitment Letter and in accordance with the terms of the Original Series F Certificate of Designation. Kien Huat committed to purchase up to the Commitment Amount of the Series F Preferred Stock pursuant to the following schedule: (i) up to $12 million no earlier than November 9, 2018, (ii) up to $20 million no earlier than February 15, 2019, (iii) up to $20 million no earlier than May 15, 2019, (iv) up to $15 million no earlier than August 15, 2019, (v) up to $37 million no earlier than November 15, 2019 and (vi) up to $22 million no earlier than March 15, 2020. The Company agreed to use its reasonable efforts to secure third-party financing in an amount equal to the Commitment Amount and the Commitment Amount will be reduced by the amount of any third-party financing raised by the Company. However, any equity financing raised by the Company from any person entering into a commercial agreement relating to online gaming and sports betting at Resorts World Catskills in an amount up to $29 million will not reduce the Commitment Amount.

Kien Huat is entitled to a funding fee in the amount of 1% of the portion of the Commitment Amount funded by Kien Huat at the time of any such funding. Unless earlier terminated by mutual agreement, the KH 2018 Preferred Stock Commitment Letter will terminate upon the earlier of (a) the Company’s receipt of third-party financing in the Commitment Amount or (b) April 15, 2020.

On November 9, 2018, the Company and Kien Huat amended and restated the Original KH 2018 Preferred Stock Commitment Letter to add references to the Conversion Limitation and the Voting Limitation on the Series F Preferred Stock and related stockholder consent requirements for removing such Series F Caps. In addition, pursuant to the KH 2018 Preferred Stock Commitment Letter, Kien Huat, as the holder of a majority of voting power of the Company’s outstanding Voting Stock, agreed to execute a written consent to approve the removal of the Series F Caps. Furthermore, the Company agreed that its Board of Directors, including each director independent of Kien Huat, would approve and recommend to its stockholders the actions contemplated by the Stockholder Approval. Except as set forth herein, all other terms of the Original KH 2018 Preferred Stock Commitment Letter remain unchanged and are in full force and effect.

On November 14, 2018, we entered into the bet365 the bet365 Common Stock Purchase Agreement with an affiliate of bet365 to sell up to $50 million in shares of common stock of the Company in connection with the Company’s collaboration with another bet365 affiliate to develop a physical and online sportsbook and digital gaming services at Resorts Word Catskills. $33.715 million of the $50 million was purchased on November 14, 2018, with the balance to be acquired at a future date, subject to certain conditions. In accordance with the KH 2018 Preferred Stock Commitment Letter, the Commitment Amount was reduced by the amount of bet365 proceeds exceeding $29 million, from $126 million to $121.28 million. Any future sales to bet365 pursuant to the bet365 Common Stock Purchase Agreement would further reduce the Commitment Amount by such additional amount.

The foregoing description of the KH 2018 Preferred Stock Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the complete text of the KH 2018 Preferred Stock Commitment Letter, a copy of which is attached as Annex A to this Information Statement and is incorporated herein by reference.

The KH 2018 Preferred Stock Commitment Letter should not be read alone, but should instead be read in conjunction with the other information regarding the Company and Kien Huat contained in this Information Statement, as well as in the filings that we have made and may make with the SEC.

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KH Subscription Agreement

On November 13, 2018, in accordance with the KH 2018 Preferred Stock Commitment Letter, the Company and Kien Huat entered into a subscription agreement (the “KH Subscription Agreement”) pursuant to which Kien Huat purchased 120 shares of Series F Preferred Stock for an aggregate purchase price of $12 million, and net proceeds to the Company (after deducting a $120,000 funding fee due to Kien Huat) of $11.88 million.

The foregoing description of the KH Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the KH Subscription Agreement, a copy of which is attached as Annex C to this Information Statement and is incorporated herein by reference.

The KH Subscription Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Company and its operations and Kien Huat and that is contained in this Information Statement, as well as in the filings that we have made and may make with the SEC.

Series F Preferred Stock

On November 9, 2018, the Company filed an Amended and Restated Certificate of Designations, Preferences and Rights of Series F Convertible Preferred Stock with the Secretary of State of the State of Delaware, which amended the Certificate of Designations, Preferences and Rights of Series F Convertible Preferred Stock, originally filed with the Secretary of State of the State of Delaware on November 5, 2018. The Series F Certificate of Designation was approved by the Board of Directors of the Company and filed prior to the issuance of any shares of Series F Preferred Stock.

The material terms and conditions of the Series F Preferred Stock, set forth in the Series F Certificate of Designation, are as follows:

Designation and Amount

One Thousand Five Hundred (1,500) shares of Series F Preferred Stock constitute the class of preferred stock and each share has a stated value of $100,000 (the “Stated Value”).

Ranking; Dividends

The Series F Preferred Stock ranks, with respect to its rights, preferences and privileges, including but not limited to the distribution of assets, senior to all classes or series of equity securities of the Company, except the Company’s outstanding Series B Preferred Stock, par value $0.01 per share, which shall remain senior in all respects to the Series F Preferred Stock. The Series F Preferred Stock is entitled to receive, and the Company will pay, dividends on shares of Series F Preferred Stock equal (on an-converted basis) to and in the same form as dividends actually paid on shares of Common Stock of the Company, when, as and if such dividends are paid on shares of the Common Stock.

Voting Rights

Holders of Series F Preferred Stock are entitled to receive notice of all stockholders’ meetings of the Company and to vote on all matters submitted to the vote of holders of Common Stock on an as-converted basis and not as a separate class. Subject to the Voting Limitation described in further detail below, each share of Series F Preferred Stock represents such number of votes equal to the number of Conversion Shares into which such share is convertible at such time.

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Limitation on Voting Rights

Until Stockholder Approval is obtained and becomes effective, if at any time the total number of votes represented by the Series F Preferred Stock on an as-converted basis would exceed 20% or more of the Company’s issued and outstanding Common Stock or voting power (the “Issuable Maximum”), the votes represented by such outstanding Series F Preferred Stock would be adjusted downward until the aggregate votes represented by the Series F Preferred Stock do not exceed the Issuable Maximum.

Optional Conversion

The Series F Preferred Stock is convertible into shares of the Company’s Common Stock at any time and from time to time prior to December 31, 2038 (the “Maturity Date”). Each share of Series F Preferred Stock will be convertible into Conversion Shares in an amount equal to (a) the Stated Value divided by $20.00 (the “Base Conversion Price”) (subject to adjustments), multiplied by (b) the number of shares of Series F Preferred Stock being converted. Following any conversion of the Series F Preferred Stock, the holder of the Conversion Shares will be entitled to receive any dividends that were declared but unpaid at the time of such conversion if and to the extent that such holder would have been entitled to receive such dividend had the conversion not occurred.

Mandatory Conversion

Each Series F Preferred Stock that is outstanding on the Maturity Date shall automatically be converted into that number of Conversion Shares determined by dividing the Stated Value by the volume-weighted average price for a share of Common Stock for the 90 consecutive trading days ending on the trading day immediately prior to the Maturity Date.

In addition, in the event of a Change of Control Transaction (as defined below), each share of Series F Preferred Stock outstanding at such time will automatically be converted into that number of Conversion Shares determined by dividing the Stated Value by the per share consideration being offered to any holder of Common Stock in connection with any such Change of Control Transaction. Following such conversion, the holder of the Conversion Shares will be entitled to participate in such Change of Control Transaction and to receive the same per share consideration that any other holder of Common Stock is entitled to receive as a result of such Change of Control Transaction. A “Change of Control Transaction” includes: (i) consummation of a tender offer for the ownership of 50% or more of the outstanding voting securities of the Company, (ii) a merger or consolidation of the Company with another corporation, or (iii) a person acquiring 50% or more of the outstanding voting securities of the Company, unless as a result of (i), (ii) or (iii), more than 50% of the outstanding voting securities of the surviving corporation shall be owned by (a) the stockholders of the Company as of the time immediately prior to commencement of such tender offer, or the consummation of such merger or acquisition, as applicable, or (b) any employee benefit plan of the Company or its subsidiaries and their affiliates.

Limitation on Conversion

The Company may not issue Conversion Shares equal to 20% or more of the Company’s issued and outstanding Common Stock or voting power prior to a conversion of the Series F Preferred Stock (the “Conversion Limitation”) unless and until the Company obtains the approval for the removal of the Series F Caps by a majority of the voting power of the Company’s issued and outstanding Voting Stock in accordance with the applicable Nasdaq Rules, and such approval becomes effective in accordance with Rule 14c-2 under the Exchange Act.

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Share Reserve

So long as shares of Series F Preferred Stock are outstanding, the Company shall reserve and keep available such number of shares of Common Stock to be sufficient to issue the Conversion Shares.

Subsequent Rights Offerings

In the event that the Company issues additional shares of Common Stock and/or any rights, warrants, or other securities exercisable or exchangeable for shares of Common Stock pro rata to all (or substantially all) of the record holders of any class of shares of Common Stock (the “Purchase Rights”), then each holder of Series F Preferred Stock will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if the holder held the number of shares of Common Stock acquirable upon complete conversion of its Series F Preferred Stock immediately prior to the date the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.

Liquidation Preference

In the event of a liquidation, dissolution or winding up of the Company, then the holders of the Series F Preferred Stock shall receive the Stated Value per share plus an amount equal to all declared, and accrued but unpaid dividends and distributions thereon to the date of such payment. No distributions shall be made to holders of junior securities, including holders of the Company’s Common Stock, until such liquidation payment is made to the holders of Series F Preferred Stock.

This section describes the material terms of the Series F Certificate of Designation. The foregoing description of the Series F Certificate of Designation does not purport to be complete and is qualified in its entirety by reference to the complete text of the Series F Certificate of Designation, a copy of which is attached as Annex B to this Information Statement and is incorporated herein by reference.

The Series F Certificate of Designation should not be read alone, but should instead be read in conjunction with the other information regarding the Company and its operations and Kien Huat and that is contained in this Information Statement, as well as in the filings that we have made and may make with the SEC.

Reasons for Entry into the KH 2018 Preferred Stock Commitment Letter and Effect of the Issuance of Series F Preferred Stock and Conversion Shares on Current Stockholders

The financing contemplated by the KH 2018 Preferred Stock Commitment Letter and the issuance of Series F Preferred Stock is being undertaken to strengthen the Company’s capital structure and enhance its financial flexibility. Additionally, the execution of the KH 2018 Preferred Stock Commitment Letter and Kien Huat’s subscription for the initial $12 million of the Commitment Amount were conditions to the closing on the sale of the Initial Closing Shares.

The potential issuance of shares of the Company’s common stock upon conversion of the Series F Preferred Stock would result in an increase in the number of shares of Common Stock outstanding, and our stockholders will incur dilution of their percentage ownership to the extent that Kien Huat converts its shares of Series F Preferred Stock, which may be material to the current stockholders.

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Based on the capitalization of the Company as of the Record Date, the conversion of all shares of Series F Preferred Stock at the Base Conversion Price would result in the holders thereof owning approximately 84.3% of our outstanding Common Stock after giving effect to such conversion. This would amount to a dilution of approximately 0.3% to existing holders of Common Stock.

The Series F Preferred Stock is entitled to the same dividend and distribution rights as holders of the Common Stock on as-converted basis. As such, another dilutive effect resulting from the issuance of Series F Preferred Stock will be a dilution to dividends and distributions.

Agreements with Kien Huat and Other Interests of Certain Persons

KH 2018 Preferred Stock Commitment Letter

The KH 2018 Preferred Stock Commitment Letter is described above in the section entitled “The KH 2018 Preferred Stock Commitment Letter”.

Subscription Agreement

The KH Subscription Agreement is described above in the section entitled “The KH Subscription Agreement”.

Kien Huat Backstop Loan Agreement

On December 28, 2017, concurrently with and as a condition to the closing of the Bangkok Bank Loan Agreement, the Company and Kien Huat entered into a loan agreement (the “Kien Huat Backstop Loan Agreement”), providing for loans to the Company in an aggregate principal amount of up to $20 million (the “Kien Huat Backstop Loan”). Any amounts borrowed under the Kien Huat Backstop Loan will be used exclusively to make payments required under the Bangkok Bank Loan Agreement and will mature on the one-year anniversary of the Maturity Date of the Bangkok Bank Loan, or such earlier date that the Bangkok Bank Loan is terminated (the “Backstop Maturity Date”). As of February 1, 2019, no amounts had been borrowed under the Kien Huat Backstop Loan.

The Kien Huat Backstop Loan bears interest at a rate of 12% per annum. Prior to the Backstop Maturity Date, interest on any principal amount outstanding under the Kien Huat Backstop Loan will accrue and be added to the outstanding principal of the Kien Huat Backstop Loan on the first business day of each calendar month beginning on January 1, 2018 and will thereafter be deemed to be part of the principal indebtedness. The Kien Huat Backstop Loan, including all interest and any other amounts due under the Kien Huat Backstop Loan, will be payable in cash on the Backstop Maturity Date. Kien Huat was paid a commitment fee of $200,000 on December 28, 2017 in connection with the entry into the Kien Huat Backstop Loan Agreement.

The Kien Huat Backstop Loan Agreement contains customary representations and warranties and affirmative covenants, including representations, warranties and covenants that restrict the Company’s use of the proceeds of the Kien Huat Backstop Loan to pay amounts due and payable under the Bangkok Bank Loan. Obligations under the Kien Huat Backstop Loan Agreement may be accelerated upon certain customary events of default (subject to grace periods, as applicable), including among others: nonpayment of principal, interest or fees; and breach of the affirmative covenants.

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Kien Huat Subordinate Loan Agreement

On June 25, 2018, Kien Huat and the Company entered into a loan agreement (the “Kien Huat Subordinate Loan Agreement”), which provides for loans of up to $30 million (the “Kien Huat Subordinate Loan”). The Kien Huat Subordinate Loan is subordinate to the Bangkok Bank Loan. The proceeds of the Kien Huat Subordinate Loan may be used exclusively to make capital contributions to Montreign. Montreign may use such funds for marketing and general corporate purposes (including the payment of debt service). All amounts due under the Kien Huat Subordinate Loan will mature on December 28, 2020, which date may be extended for additional one-year periods if the Bangkok Bank Loan is similarly extended or accelerated in the event the Bangkok Bank Loan is accelerated. The maturity of the Kien Huat Subordinate Loan may also be extended for up to one year at the sole discretion of Kien Huat. Advances under the Kien Huat Subordinate Loan will be made in four installments as follows: (i) $5 million will be advanced no earlier than July 2, 2018; (ii) $5 million will be advanced no earlier than July 20, 2018; (iii) $10 million will be advanced no earlier than September 4, 2018; and (iv) $10 million will be advanced no earlier than September 17, 2018. The only condition to an advance will be the delivery of a request for an advance not less than five business days prior to the date of an advance and that the representations contained in the Kien Huat Subordinate Loan Agreement will be true and correct. At September 30, 2018, $20 million was outstanding under the Kien Huat Subordinate Loan and an additional $10 million was advanced on October 16, 2018. The Company paid Kien Huat a commitment fee of $300,000 (or 1% of the principal amount) out of the proceeds of the first advance.

The Kien Huat Subordinate Loan bears interest at a rate of 12% per annum, compounded monthly, and will be payable monthly in arrears. Prior to the maturity of the Kien Huat Subordinate Loan, interest will not be required to be paid in cash and will be added to the outstanding principal of the Kien Huat Subordinate Loan and will thereafter be deemed to be part of the principal indebtedness due thereunder upon maturity. The Kien Huat Subordinate Loan may be repaid in full or in part at any time without premium or penalty.

The Kien Huat Subordinate Loan Agreement contains customary representations and warranties and affirmative covenants, including a restriction on the use of the proceeds of the Kien Huat Subordinate Loan as described above. Obligations under the Kien Huat Subordinate Loan Agreement may be accelerated upon certain customary events of default (subject to grace periods, as applicable), including among others: nonpayment of principal, interest or fees; breach of the affirmative covenants; and a default in payment of or acceleration of the Bangkok Bank Loan. Additionally, any future amendments to the Bangkok Bank Loan Agreement relating to default provisions thereunder, prepayment provisions or an increase of the maximum principal amount thereunder will be subject to Kien Huat’s prior written consent.

The Company agreed to indemnify and defend Kien Huat and its affiliates from negligent acts or omissions of the Company and its affiliates, any failure of the Company to comply with the terms of the Kien Huat Subordinate Loan Agreement and any failure of the Company to comply with any laws, except to the extent resulting from the gross negligence or willful misconduct of Kien Huat or its affiliates.

Registration Rights

Pursuant to the terms of that certain Investment Agreement dated August 19, 2009 as amended on September 30, 2009, on August 19, 2009, the Company entered into a Registration Rights

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Agreement with the Kien Huat (the “Registration Rights Agreement”). The Registration Rights Agreement provides, among other things, that Kien Huat may require that the Company file one or more “resale” registration statements, registering under the Securities Act of 1933, as amended, the offer and sale of all of the Common Stock issued or to be issued to Kien Huat pursuant to the Investment Agreement as well as any shares acquired by way of a share dividend or share split or in connection with a combination of such shares, recapitalization, merger, consolidation or other reorganization with respect to such shares. In addition, pursuant to a series of commitment letters between the Company and Kien Huat, last amended on September 22, 2015, the Company agreed to register for resale all of the shares of Common Stock issued to Kien Huat in a rights offering commenced by the Company on January 5, 2015 and a rights offering commenced by the Company on January 4, 2016 (the “January 2016 Rights Offering”), as well as any follow-on rights offering, as well as any other unregistered shares of Common Stock (including the Conversion Shares) held by Kien Huat.

Kien Huat Letter Agreement

As a result of Kien Huat’s increased proportionate ownership following the consummation of the January 2016 Rights Offering and the conversion of a convertible promissory note issued to Kien Huat on November 17, 2010, at the request of the Company, on February 17, 2016, Kien Huat and the Company entered into a letter agreement (the “Kien Huat Letter Agreement”) pursuant to which, during the period commencing on February 17, 2016 and ending on the earlier of (i) the three year anniversary of the closing of the January 2016 Rights Offering and (ii) the one-year anniversary of the opening of Resorts World Catskills, Kien Huat has agreed not to take certain actions with respect to the Company. In particular, during such time period, Kien Huat has agreed not to, and to cause the Kien Huat parties not to, take certain actions in furtherance of a “going-private” transaction (as such term is defined in the Kien Huat Letter Agreement) involving the Company unless such transaction is subject to the approval of (x) holders of a majority of the votes represented by the common stock, Series B Preferred Stock and any other capital stock of the Company entitled to vote together with the common stock in the election of the Board (other than any such capital stock owned by any Kien Huat parties) and (x) either (A) a majority of disinterested members of the Board or (y) a committee of the Board composed of disinterested members of the Board. In addition, during such period, the Company and Kien Huat have agreed to cooperate to ensure that, to the greatest extent possible, the Board includes no fewer than three independent directors (the definition of independence as determined under the standards of The NASDAQ Stock Market LLC or any other securities exchange on which the common stock of the Company is then listed).

On December 28, 2017, the Company and Kien Huat amended the Kien Huat Letter Agreement to extend by one year Kien Huat’s obligation not to engage in a going-private transaction with the Company without the prior approval of the majority of the Company’s minority stockholders and a majority of the disinterested directors of the Company. As a result of the amendment, such restriction now covers a period ending in February 2020. Other than this one-year extension, all other terms of the Kien Huat Letter Agreement remain unchanged.

Other Interests

Mr. Gerard Ewe Keng Lim, our Director, is also a director of Kien Huat.

Pursuant to our Audit Committee Charter, the Audit Committee reviews and approves all transactions between the Company and its officers, directors, director nominees, principal stockholders

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and their immediate family members. We intend that any such transactions will be on terms no less favorable to the Company than the Company could obtain from unaffiliated third parties.

The transactions contemplated by the KH 2018 Preferred Stock Commitment Letter and the KH Subscription Agreement, including the issuance of the Series F Preferred Stock and the Conversion Shares, were approved by the Audit Committee and the Board of Directors and of the Company on each of November 5, 2018 and November 9, 2018, with Mr. Lim abstaining from such approvals. The Audit Committee determined that the transactions contemplated thereby were fair to, and in the best interest of, the Company and its stockholders.

Vote Required of the Outstanding Voting Stock

As of the Record Date, we had 34,423,250 shares of Common Stock, 44,258 shares of Series B Preferred Stock and 120 shares of Series F Preferred Stock issued and outstanding and entitled to vote. As of the Record Date, each share of Common Stock entitles the holder thereof to one vote, each share of Series B Preferred Stock entitles the holder thereof to fifty-four thousandths (.054) of one vote and each share of Series F Preferred Stock entitles the holder thereof to 5,000 votes, except that, pursuant to Nasdaq Rule 5635(d), none of the shares of Series F Preferred Stock issued as of the Record Date were entitled to vote on actions subject to Stockholder Approval that were described herein. Accordingly, as of the Record Date, a total of 34,425,639 votes were entitled to vote on the issuance of the Conversion Shares.

On the Record Date, Kien Huat, which owns a total of 28,914,606 shares of Common Stock, which represented approximately 84.0% of the voting power of the Voting Stock outstanding on the Record Date, executed and delivered the Written Consent. Pursuant to Nasdaq Rule 5635(d), Kien Huat was not entitled to vote the 600,000 Conversion Shares underlying the 120 shares of Series F Preferred Stock it held on the Record Date.

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Description of Capital Stock

General

Our authorized capital stock consists of 150,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, of which 95,000 shares have been designated Series A Junior Participating Preferred Stock, $.01 par value per share, 821,496 shares have been designated Series B Preferred Stock, $.01 par value per share, 137,889 shares have been designated Series C Preferred Stock, $.01 par value per share, 4,000 shares have been designated Series D Preferred Stock, $.01 par value per share, 1,730,697 shares have been designated Series E Preferred Stock, $.01 par value per share, and 1,500 shares have been designated Series F Preferred Stock, $.01 par value per share.

The transfer agent and registrar for our Common Stock and Series F Preferred Stock is Continental Stock Transfer & Trust Company.

Common Stock

As of the Record Date, there were 34,423,250 shares of Common Stock outstanding and 205 holders of record of our Common Stock.

Voting. Each holder of Common Stock is entitled to one vote for each share on all matters to be voted upon by the holders of Common Stock.

Dividends. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of Common Stock are entitled to receive ratably those dividends, if any, as may be declared from time to time (in accordance with relevant laws and then-applicable contractual limitations) by our board of directors out of legally available funds.

Liquidation. In the event of our liquidation, dissolution or winding up, holders of Common Stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preferences that may be granted to the holders of any then outstanding shares of preferred stock.

Rights and Preferences The Common Stock has no preemptive, conversion or other subscription rights (other than pursuant to the Rights Offering described in this Information Statement), and there are no redemption or sinking fund provisions applicable to the Common Stock. The rights, preferences and privileges of the holders of Common Stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock, which we may designate and issue in the future.

New York State Gaming Commission . Our Common Stock is transferable only subject to the provisions of Section 303 of the Racing, Pari-Mutuel Wagering and Breeding Law, so long as we hold directly or indirectly, a racing license issued by the New York State Gaming Commission (formerly the New York Racing and Wagering Board), and may be subject to compliance with the requirements of other laws pertaining to licenses held directly or indirectly by us. The owners of Common Stock issued by the Company may be required by regulatory authorities to possess certain qualifications and may be required to dispose of their Common Stock if the owner does not possess such qualifications.

Our Common Stock is admitted for trading on The Nasdaq Global Market under the symbol “NYNY”.

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Preferred Stock

Our board of directors has the authority to issue up to an aggregate of 5,000,000 shares of preferred stock in one or more series and to fix the voting powers, designations, preferences and rights, and qualifications, limitations or restrictions thereof, of each such series without any further vote or action by the stockholders, of which an aggregate of 2,790,582 shares have been designated as a specific series of preferred stock. As of the date hereof, 44,258 shares of Series B Preferred Stock and 120 shares of Series F Preferred Stock are currently outstanding.

New York State Gaming Commission . Once designated and issued, our preferred stock is transferable only subject to the provisions of Section 303 of the Racing, Pari-Mutuel Wagering and Breeding Law, so long as we hold directly or indirectly, a racing license issued by the New York State Gaming Commission (formerly the New York Racing and Wagering Board), and may be subject to compliance with the requirements of other laws pertaining to licenses held directly or indirectly by us. The owners of preferred stock issued by the Company may be required by regulatory authorities to possess certain qualifications and may be required to dispose of their preferred stock if the owner does not possess such qualifications.

Series B Preferred Stock

We are authorized to issue up to 821,496 shares of Series B Preferred Stock, of which 44,258 shares are issued and outstanding. Each share of Series B Preferred Stock is convertible into 0.054 of a share of Common Stock and represents the right to 0.054 of a vote on all matters to be voted upon by the holders of Common Stock. The holders of Series B Preferred Stock are entitled to receive, out of assets legally available for payment, a cash dividend of $2.90 per annum per share of Series B Preferred Stock. This Series B dividend accrues from the date of initial issuance and is payable on the first day of each January, April, July and October. If any dividend on any share shall for any reason not be paid at the time such dividend becomes due, such dividend in arrears shall be paid as soon as payments are permissible under Delaware law. However, any dividend payment which is not made on or before January 30 of the following calendar year shall be payable in the form of shares of Common Stock in such number of shares as shall be determined by dividing (A) the product of (x) the amount of the unpaid dividend and (y) 1.3 by (B) the fair market value of the Common Stock. Finally, in the event of our liquidation, dissolution or winding up, the holders of our Series B Preferred Stock are entitled to receive a preferential distribution of $29 per share, plus all unpaid accrued dividends.

Series F Preferred Stock

For a description of our Series F Preferred Stock, see the section entitled “Background and Reasons for the Entry into the KH 2018 Preferred Stock Commitment Letter and Approval of the Issuance of Series F Preferred Stock—Series F Preferred Stock.”

Delaware Anti-Takeover Law and Provisions of our Certificate of Incorporation and Bylaws

Delaware Anti-Takeover Law

We are subject to Section 203 of the DGCL. Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless:

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Section 203 defines a business combination to include:

In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with, or controlling, or controlled by, the entity or person. The term “owner” is broadly defined to include any person that, individually, with or through that person’s affiliates or associates, among other things, beneficially owns the stock, or has the right to acquire the stock, whether or not the right is immediately exercisable, under any agreement or understanding or upon the exercise of warrants or options or otherwise or has the right to vote the stock under any agreement or understanding, or has an agreement or understanding with the beneficial owner of the stock for the purpose of acquiring, holding, voting or disposing of the stock.

The restrictions in Section 203 do not apply to corporations that have elected, in the manner provided in Section 203, not to be subject to Section 203 of the DGCL or, with certain exceptions, which do not have a class of voting stock that is listed on a national securities exchange or authorized for quotation on the Nasdaq Stock Market or held of record by more than 2,000 stockholders. Our Second Amended and Restated Certificate of Incorporation and our Third Amended and Restated Bylaws do not opt out of Section 203.

Section 203 could delay or prohibit mergers or other takeover or change in control attempts with respect to us and, accordingly, may discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.

Certificate of Incorporation and Bylaws

Provisions of our Second Amended and Restated Certificate of Incorporation and Third Amended and Restated Bylaws may delay or discourage transactions involving an actual or potential change in our control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might

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otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our Common Stock. Among other things, our Second Amended and Restated Certificate of Incorporation and Third Amended and Restated Bylaws:

Limitation of Liability; Indemnification

Our certificate of incorporation contains certain provisions permitted under the DGCL relating to the liability of our directors. These provisions eliminate a director’s personal liability for monetary damages resulting from a breach of fiduciary duty, except in certain circumstances involving wrongful acts, including:

These provisions do not limit or eliminate our rights or those of any stockholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. These provisions will not alter a director’s liability under federal securities laws.

Our Second Amended and Restated Certificate of Incorporation also provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL. We believe that these provisions are necessary to attract and retain qualified individuals to serve as directors and officers.

Our Third Amended and Restated Bylaws provide that we will indemnify our directors and officers to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended,

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against all expenses and liabilities reasonably incurred for their service for or on our behalf and as proportionate to their level of success in any such indemnification action. Our Third Amended and Restated Bylaws provide that we will advance the expenses incurred by a director or officer in advance of the final disposition of an action or proceeding; provided that such advances shall be repaid to us to the extent that it is ultimately determined that the director or officer is not entitled to be so indemnified. The Third Amended and Restated Bylaws, together with our Second Amended and Restated Certificate of Incorporation, also authorize us to indemnify, on a case-by-case basis, any of our employees or agents and permit us to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not the DGCL would otherwise permit indemnification.

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