Amended Statement of Beneficial Ownership (sc 13d/a)
25 July 2019 - 11:21PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
|
SCHEDULE
13D
Under the Securities Exchange Act of 1934
(Amendment No. 25)*
Empire
Resorts, Inc.
(Name
of Issuer)
Common
Stock, $.01 Par Value Per Share
(Title
of Class of Securities)
292052107
(CUSIP
Number)
Steven
L. Wilner, Esq.
Cleary
Gottlieb Steen & Hamilton LLP
One
Liberty Plaza
New York, NY 10006
212-225-2000
|
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July
25, 2019
(Date
of Event which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 140.13d-1(g), check the following box.
☐
Note:
Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §
240.13d-7 for other parties to whom copies are to be sent.
*
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided
in a prior cover page.
The
information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section
18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No.
292052107
|
1.
|
Names
of Reporting Persons.
|
|
I.R.S.
Identification Nos. of above persons (entities only).
Kien
Huat Realty III Limited
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
|
X
|
|
4.
|
Source
of Funds (See Instructions)
|
AF
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
____
|
|
6.
|
Citizenship
or Place of Organization
|
Isle
of Man
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7.
|
Sole
Voting Power
|
0
|
8.
|
Shared
Voting Power
|
32,614,606
(1)
|
9.
|
Sole
Dispositive Power
|
0
|
10.
|
Shared
Dispositive Power
|
32,614,606
(1)
|
|
11.
|
Aggregate Amount Beneficially Owned by Each
Reporting Person
|
32,614,606
(1)
|
|
12.
|
Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions)
|
X
|
|
13.
|
Percent of Class Represented by Amount in Row
(11)
|
85.57%
(
2
)
|
|
14.
|
Type of Reporting Person (See Instructions)
|
CO
|
1
This includes 28,914,606 shares of common stock, par value $.01 per share (the “Common Stock”), of Empire Resorts,
Inc. (the “Issuer”) and 3,700,000 shares of Common Stock into which the Series F Preferred Stock (the “Preferred
Stock”) beneficially owned by the reporting person can currently be converted.
2
Calculated on the basis of a total of 34,413,459 shares of Common Stock outstanding as of May 7, 2019, as reported by the
Issuer in its Quarterly Report on Form 10-Q filed on May 8, 2019 (the “10-Q”), 2,390 shares of Common Stock into which
the Series B Preferred Stock can be converted, and 3,700,000 shares of Common Stock into which the Preferred Stock beneficially
owned by the reporting persons can currently be converted.
CUSIP
No.
292052107
|
1.
|
Names of Reporting Persons.
|
|
I.R.S.
Identification Nos. of above persons (entities only).
Lim
Kok Thay
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
|
X
|
|
4.
|
Source of Funds (See Instructions)
|
AF
|
|
5.
|
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
____
|
|
6.
|
Citizenship or Place of Organization
|
Malaysia
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7.
|
Sole
Voting Power
|
0
|
8.
|
Shared
Voting Power
|
32,614,606
(3)
|
9.
|
Sole
Dispositive Power
|
0
|
10.
|
Shared
Dispositive Power
|
32,614,606
(3)
|
|
11.
|
Aggregate Amount Beneficially Owned by Each
Reporting Person
|
32,614,606
(3)
|
|
12.
|
Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions)
|
X
|
|
13.
|
Percent of Class Represented by Amount in Row
(11)
|
85.57%
(4)
|
|
14.
|
Type of Reporting Person (See Instructions)
|
IN
|
3
This includes 28,914,606 shares of the Common Stock and 3,700,000 shares of Common Stock into which the Preferred Stock
beneficially owned by the reporting person can currently be converted.
4
Calculated on the basis of a total of 34,413,459 shares of Common Stock outstanding as of May 7, 2019, as reported by the
Issuer in the Form 10-Q, 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 3,700,000
shares of Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.
This
Amendment No. 25 (this “Amendment No. 25") amends and supplements the Schedule 13D filed by Kien Huat Realty III Limited
(“Kien Huat”) and Lim Kok Thay (together with Kien Huat, the “Reporting Persons”) with the Securities
and Exchange Commission on August 27, 2009, as previously amended (the “Schedule 13D”), relating to the Common Stock
of the Issuer. All capitalized terms used in this Amendment No. 25 and not otherwise defined herein have the meanings ascribed
to such terms in the Schedule 13D.
Items
4 and 6 are hereby amended and supplemented to add the following:
Item
4. Purpose of Transaction
On
July 25, 2019, Kien Huat offered to, if requested by a special committee (the “Special Committee”) of the board
of directors of the Issuer (the “Board”), submit a non-binding proposal to the Issuer (the “Proposal
Letter”) to acquire all of the outstanding equity of the Company not held by the Reporting Persons. The acquisition contemplated by the Proposal Letter would, among other things, be subject to the approval of (i) holders of a majority
of the votes represented by the outstanding shares of Common Stock and Series B Preferred Stock (together with any other
capital stock of the Company entitled to vote together with the Common Stock in the election of the Board, “Voting
Stock”) other than Voting Stock owned by Kien Huat or its affiliates and executive management and (ii) the Special
Committee or another committee of the Board composed solely of disinterested members of the Board who are also independent of
Kien Huat and its affiliates.
The
Reporting Persons intend to engage in due diligence activities, communications and negotiations with each other and the
Special Committee, as well as the Issuer’s management, other stakeholders (including other equityholders, lenders and
the Issuer’s contractual and operational counterparties and regulators) and potential sources of liquidity and debt and
equity financing, in respect of the terms, conditions and other matters relating to a potential transaction involving the
Issuer and its securities, including the transaction described in the Proposal Letter, and a broad range of other strategic, financial and
operational matters.
References to and descriptions of the Proposal Letter do not purport to be complete and are qualified in their entirety
by reference to the actual Proposal Letter, which is filed as Exhibit 20 and is incorporated herein by reference.
Item
6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
The
disclosure set forth under Item 4 of this Amendment No. 25 is incorporated herein by reference.
SIGNATURES
After
reasonable inquiry and to the best of my knowledge, I certify that the information set forth in this statement is true, complete
and correct.
Dated:
July 25, 2019
Kien Huat Realty III Limited
|
|
|
|
By:
|
/s/ Yap Chong Chew
|
|
|
Name:
|
Yap Chong Chew
|
|
Title:
|
Authorized Signatory*
|
|
By:
|
/s/ Yap Chong Chew
|
|
|
Name:
|
Lim Kok Thay
|
|
By:
|
Yap Chong Chew**
|
|
___________________
* The Letter of Authorization given by Kien Huat Realty III Limited is filed as Exhibit 21 hereto.
** The Letter of Authorization given by Lim Kok Thay is filed as Exhibit 22 hereto.
EXHIBIT
INDEX
Exhibit
Index
|
|
Description
|
|
|
|
Exhibit 1
|
|
Joint Filing Agreement, dated as of August 27,
2009, by and between Lim Kok Thay and Kien Huat Realty III Limited.
|
|
|
|
Exhibit 2
|
|
Investment Agreement, dated as of August 19,
2009, by and between Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated by reference to Exhibit 10.1 to the
Current Report on Form 8-K filed by the Issuer on August 19, 2009).
|
|
|
|
Exhibit 3
|
|
Stockholder Voting Agreement, dated as of August
19, 2009, by and among Empire Resorts, Inc., Kien Huat Realty III Limited and the stockholders signatory thereto (incorporated
by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by the Issuer on August 19, 2009).
|
|
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Exhibit 4
|
|
Registration Rights Agreement, dated as of August
19, 2009, by and between Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated by reference to Exhibit 10.2
to the Current Report on Form 8-K filed by the Issuer on August 19, 2009).
|
|
|
|
Exhibit 5
|
|
Custody Agreement, dated as of August 19, 2009,
by and between Kien Huat Realty III Limited and JPMorgan Chase Bank, National Association, as Custodian (incorporated by reference
to Exhibit 5 to Schedule 13D filed on August 27, 2009).
|
|
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Exhibit 6
|
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Standby Purchase Agreement dated as of April
12, 2013, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 6 to Amendment
No. 8 to Schedule 13D filed on April 15, 2013).
|
|
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Exhibit 7
|
|
Standby Purchase Agreement dated as of January
2, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 99.1 to the
Current Report on Form 8-K filed by the Issuer on January 5, 2015).
|
|
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Exhibit 8
|
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Standby Purchase Agreement dated as of December
31, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 99.1 to
the Current Report on Form 8-K filed by the Issuer on January 4, 2016).
|
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Exhibit 9
|
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Letter Agreement dated February 17, 2016, by
and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 4.1 to the Current Report
on Form 8-K filed by the Issuer on February 18, 2016).
|
|
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Exhibit 10
|
|
Note Exchange Agreement, dated as of December
28, 2017, among Empire Resorts, Inc., Montreign Holding Company, LLC, and Kien Huat Realty III Limited (incorporated by reference
to Exhibit 10.4 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
|
|
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Exhibit 11
|
|
Amendment to Commitment Agreement, dated as of December
28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 99.1 of
the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
|
|
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Exhibit 12
|
|
Amendment to Letter Agreement, dated as of December
28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 4.1
of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
|
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Exhibit 13
|
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Commitment Agreement by and between Kien Huat
Realty III Limited and Empire Resorts, Inc. as amended and restated by the Amended and Restated Commitment Agreement, dated
as of November 9, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
|
Exhibit
14
|
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Subscription
Agreement, dated as of November 13, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
|
Exhibit
15
|
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Amended
and Restated Certificate of Designations for the Series F Convertible Preferred Stock, dated as of November 9, 2018.
|
Exhibit
16
|
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Subscription
Agreement, dated as of February 20, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated
by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on February 20, 2019).
|
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Exhibit 17
|
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Amendment, dated May 7, 2019, to the Commitment
Agreement by and between Kien Huat Realty III Limited and Empire Resorts, Inc. as amended and restated by the Amended and
Restated Commitment Agreement, dated as of November 9, 2018, by and between Kien Huat Realty III Limited and Empire Resorts,
Inc.
|
|
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Exhibit 18
|
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Subscription Agreement, dated as of May 21,
2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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Exhibit 19
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Subscription Agreement, dated as of June 17,
2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
|
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Exhibit 20
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Proposal, dated as of July 25, 2019, by Kien Huat Realty III Limited to the special
committee of the board of directors of Empire Resorts, Inc.
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Exhibit 21
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Letter of Authorization, given by Kien Huat Realty III Limited
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Exhibit 22
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Letter of Authorization, given by Lim Kok Thay
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